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IMAGE  EVAIUATION 
TEST  TARGET  (MT-3) 


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121 


AO    112.0 


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12.2 


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6" 


Photographie 

Sciences 
•  Oxporalion 


33  WCST  MAiN  STRiET 

WIBSTER,N.Y.  14S80 

(7M)  •72-4503 


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CIHM 
Microfiche 
Séries 
(IMonograplis) 


iCIVIH 

Collection  de 
microfiches 
(monographies) 


Canadian  Instituta  for  Historical  Microraproductiona  /  Institut  canadian  da  microraproductiona  historiquaa 


•  K'^  éà  ift  '^ 


\ 


Technical  and  Bibliographie  Notes  /  Notas  techniques  et  bibliographiques 


The  Intfitute  has  attempted  to  obtain  the  beit  origiiul 
copy  available  for  f  ilming.  Features  of  this  copy  which 
may  be  bibliographically  unique,  which  may  alter  any 
of  the  images  in  the  reproduction,  or  which  may 
significantly  change  the  usual  method  of  filming,  are 
checked  below. 


0 

D 
D 

a 
n 

D 

n 

D 


Cotoured  covers/ 
Couverture  de  couleur 

Covers  damaged/ 
Couverture  endommagée 


Covers  restored  and/or  laminated/ 
Couverture  restaurée  et/ou  pelliculée 


Cover  title  missing/  <., 

Le  titre  de  couverture  manque 

Coloured  maps/ 

Cartes  géographiques  en  couleur 

Coloured  ink  (i.e.  other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 

Coloured  plates  and/or  illustrations/  ' 

Planches  et/ou  illustrations  en  couleur 
t 

Bound  with  other  material/ 
Relié  avec  d'autres  documents 


L'Institut  a  microfilmé  le  meilleur  exemplaire  qu'il 
lui  a  été  possible  de  se  procurer.  Les  détails  de  cet 
exemplaire  qui  sont  peut-être  uniques  du  point  de  vue 
bibliograpfiiftue,  qui  peuvent  modifier  une  tmage     - 
reproduite,  ou  qui  peuvent  exiger  une  modification 
dans  la  méthode  normale,  de  filmage  sont  indiqués 
ci-dessous. 

□  Cbloured  piges/ 
Pages  de  couleur 

□  1*ages  damaged/ 
Pages  endommagées 

□  Pages  restbred  and/or  laminated/ 
Pages  restaurées  et/ôu  pelliculées 


0 


Pages  discoloured.  stained  or  foxed/ 
Pages  décolorées,  tachetées  ou  piquées 


□  Pages  detached/ 
Pages  détachées 

0Showthrough/ 
Transparence 


D 

n 


Quality  of  priht  varies/ 
Qualité  inégale  de  l'impression 

Continuous  pagination/ 
Pagination  continue 


f  ight  bindmg  may  cause  shadows  or  distortion 
along  interior  margimf 

La  reliure  serrée  peut  causer  de  l'ombre  ou  de  la 
distorsion  le  long  de  la  marge  intérieure 

Blank  leaves  added  during  restqration  may  apftear 
within  the  text.  Whenever  possible,  thèse  hâve 
been  omitted  from  filming/ 
M  se  peut  que  certaines  pages  blanches  ajoutées 
lors  d'une  restauration  apparaissent  dans  le  texte, 
mais,  lorsque  cela  était  possible,  ces  pages  n'ont 
pas  été  f  ilmée%. 

Additional  comments:/ 
Commentaires  supplémentaires: 

This  item  is  f ilmed  at  the  réduction  ratio  checked  below/ 

Ce  document  est  filmé  au  taux  de  réduction  indiqué  ci-dessous 

includes  mdexies)/ 
Comprend  un  (des)  index 

Title  on  header  taken  from:/ 
Le  titre  de  l'en-tête  provient: 

Title  page  of  issue/ 
1  Page  de  titre  de  la  livraison 

Caption  of  issue/ 
1  Titre  de  départ  de  la  livraison 

Masthead/ 

Générique  (périodiques)  de  li 

1  livraison 

■ 

i 

IXIJC 

^*x              ^             IBX                           22X                            Z6X  j|.  ■                    3ÔX.       •                           | 

• 

y 

• 

12X 

16X 

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20X 

t 

24X 

H* 

M 

28X 

'j^ .  ., 

32  X 

1 

■Th*  copy  filin«d  h«r«  ha*  b«*n  rtproducMl  thankt 
to  tb«  o«n«rositY  of  : 

Library  tff  tht  National 
Archivas  of  Canada 

Th«  JmagM  appaafing  hara  ara  tha  baat  quality  • 
potaibla  conaidaring  tha  conditian  and  laflibiiity 
of  tha  original  copy  and  in  kaaping  with  tha 
filming  contract  apadficationa.     ^ 


Original  copiaa  in  printad  papar  apvara  ara  fllmad 
baginning  with  tha  front  eovar  and  anding  on 
tita  laat  paga  with  a  printad  or  llltiatratad  impraa- 
aion.  or  tfta  back  covar  whan  appropriata.  Ail 
othar  original  copiaa  ara  filmad  baginning  on  tha 
f  irat  paga  with  a  printad  or  iliuatratad  impraa- 
aion.  and  anding  on  tha  laat  paga  with  a  printad 
or  iliuatratad  impraaaion. 


Tha  laat  racordad  f  rama  on  aach  microficha 
ahall  eontain  tha  aymbol  *^  (maaning  "CON- 
TINUED").  or  tha  aymbol  ▼  (maaning  "&tp"). 
whiehavar  appiiaa. 

àllapa.  plataa.  charta,  atc.  may  ba  filmad  at 
diffarant  raduction  ratioa.  Thoaa  too  larga  ttf  ba 
antiraly  ineludad  in  ona  axpoaura  ara  filmad 


L'axamplaira  filmé  fut  raproduit  grica  é  la 
généroaité  da: 

La  bibliothèquadet  Archivas 
nationalas  du  Canada 


La«  imagat  auh/antaa  ont  été  raprodultas  avac  la 
plus  grand  soin,  compta  tanu  da  la  condition  at 
da  la  flattaté  da  l'axamplaira  filmé,  at  un 
conformité  avac  laa  conditions  du  contrat  da 
filmaga. 

Laa  axamplairas  originaux  dont  la  couvartura  an 
paplar  aat  impriméa  sont  filmés  •n  commençant 
par  la  pramiar  plat  at  •n  terminant  aoit  par  la 
darniéra  paga  qui  comporta  una  amprainta 
d'impraaslon  ou  d'illustration,  aoit  par  la  sacond 
plat,  aalon  la  caa.  Tous  las  autras  axamplairas 
originaux  aont  filmés  an  commençant  par  la 
prantiéra  paga  qui  comporté  una  amprainta       / 
dimprassion  ou  d'iHustration  at  mn  terminant  par 
la  dernière  paga  qui  comporta  une  telle  » 
omprainta. 

Un  des  symbolea  auivants  apparaîtra  sur  la 
dernière  image  de  chèque  microficlie.  selon  le 
cas:  le  aymboiè  -^*  signifie  "A  SUIVRE",  le 
sydboie  ▼  signifie  "FIN". 

Les  cartes,  plenches.  tableaux,  etc..  peuvent  être 
filmés  é  des  taux  da  réduction  différents. 
Lorsque  le  document  est  trop  grsnd  pour  être 


beginning  in  the  upper  left  hand  corner,  iaft  tp 
right  and  top  to  bottom.  as  many  framas  as 
raquired.  Tha  foilowing  diegrams  iliuatrata  the 
method: 

V 

■ 

reproduit  eh^n  aaul.cliché.  il  est  filmé  è  R!«rtir 
de  l'engle  supérieur  gauche,  de  geuche  è  droite, 
et  de  haut  an  baa.  an  prenent  le  nombre 
d'images  nécessaire.  Les  diegrammes  suivants 
illustrant  la  méthode. 

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J&R  TfiEIE  ACTB  AT  ST.  ALBAN8,  VT., 


Oh  tbi  19th  0«TOpm,  1884. 


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BBTKO  A   COMPLTÎTE   AND  iHITHJCÎlHC  KTOOlfr  OF  ALL  Ï*R    1»^). 

<ll6BSiIN$S    OK   THK   DJ5MAND   OP  THR  UNITBD  STAXKS  FOE 

TffBIR  KèTRA»ITION,.UNDEftTia{  ASHBUBTOITTREAIT. 

HUfOp     I  • 

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AMI  THk 

HON*  JfB.  JUSTICE  SMÎTH,  J.S.C,  "  ^  "  F^^-^^'^^^ 

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OOMmiO  BT 

L.    N.    BENJAMIN,    B/C.WrM^ 


'V|ri1L.i:4X7lMI|  Jk   ÇO. 

1866. 


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ST.    ALBANS    KAID; 


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OR, 


INVESTIGATION  INTO  TIIE  CHARGES 


AOAINST 


LIEUT.  BENNETT  H.  YOUNG  AND  COMMAND, 

FOR  THEIR  ACTS  AT  ST.  ALBANS,  VT., 
On  thb  19th  OcTOBin,  18Gt. 

BEING    A   COMPLETE   AND    AUTHBNTIC    REPORT    DP    ALL    TIIE    PRO- 

CEBDINGS    ON    THE    DEMAND    OF   TIIE    UNITED    STATES    FOR 

THEIR  EXTRADITION,  l'NDER  TIIE  ASIIBURTOX  TREATY. 

BEFORE 

JUDGE  COURSOL,  J.S.P., 

AMD   THI  ' 

HON.  MR.  JUSTICE  SMITII,  J.S.C 


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WlTH  Tn«  Aroomkxt»  op  Cousbki.  asd  the  Opisioks  OP  THE  .TUDÛF.8  nKVISKP 

BT  TnKMSKLVK». 


OOMPILED  BY 

L.    N.    BENJAMIN,    B.C.L. 


1865. 


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PREFACE. 


The  magnitude  of  the  intercste  inyolyed  in  the  St.  Albans  Case, 
and  the  importance  of  the  questions  which  arMedûnHg  its-d»- 
cussion,  havc  appearod  to  me  such  as  to  justify  the  ptiblication  of 
a  complète  report  of  the  proceedings  ;  and  in  preparmg  it  accord- 
ingly,  I  hâve  l^eeu  indebted  to'  the  eminent  Counsel  engaged  on 
both  sides  for  such-a  revision  of  the  reports  of  their  argumenta,  as 
enables  me  to  be  certain  of  their  substantiàl  correetness. 

Before  going  to  press,  documents  arrivcd  from  England  which 
appeared  to  sustain  the  corrcctnoss  of  two  of  the/  most  important 
of  the  judgmentg  rendered  j^e  43aso. .  I  have^  therofore,  added 
them  as  an  appendix. 


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L.  N.  B. 


Montréal,  17th  ^pril,  1865. 


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KHRATUll. 
Page  1,  line  8,  ingteaJcf  "  witb  felony,"  road  <•  with  suapicio^  of  felony." 


.iV..    .' 


':■■]  ■■  \ 


V 


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>T.  AlyBAN'S  RAJd! 


Beforo  Mr.  Justice  Badqley 
PROVINCE  OP  CANADA   )       ^x         ** 

DutrictofMo:i;^ai     '\     POLICE  OFFICE.  •.   : 

To  the  keoper  of  the-Common  Gaol  of  the  said  District,  greetina  •• 

4>«in«     ^'^^.  »»'«  i>i8tnct,  laborer,  stana's  charged  upon  oath  with 

^l2;  •  ?'''  *''  *'^'''«^«^«  toytuthorize  aJ  comÏÏnd  vou  t 

receive  into  your  custodjr  the  bodf  of  ^he  said  VV.  il   HutcCon 

andhim  safely  keep  for  examination.  ^     «utcùinson, 

daf  oroTt^Knn'';. ^"^  seal  at'Montreal,  thi«  twenty-seventh  ^ 

.  .  (Signed)    J.  p.  SEXTON, 

i  .  Recorder. 


,j 


POLICE  OFFICE.     • 


PROVINCE  OP  CANADA,  ). 
DvitrUt  of  Montréal,  CitiT  > 
0/ Montréal.  ) 

of  wSif  ^*'?  •  ^'^^t.  "^°i  «<>'»PÏa'°t  of  Guillaume  Lainothe;  of  the  citv 
of  Mbntreal,  m  the  District  of  Montréal,  Esquire,  ciùef  of^lS7 

ethThSrrd'^'  thistwenl-seventh  day^f  âcto^fX lÏÏÏÏ 
eigût  hundrôd  and  sixty-îour,  at  the  PolicA  Offi*.*,  in  ♦i.r^*      r 

£S:'i'ij'°^.  ?%»"Wed  kec„rfe^n*ld  V^  t  Z^ 
«,«  J^  •    1?  °f  Montreal,  between  tté-houre  of  six  and  eieht  of 


/^l 


«SSSf  J1       HrHutchmsôn,  upon  suspicion  of  his  ha^ff^m- 
IJnited  States  of  Amenca.    Ûpon  the  person  of  the  said  HutclT    - 


^ 


'? 


\  '      ^      •       .  •     ' 

son,  who  18  now  a  pnsoner  in  my  cqstody,  I  found  aftor  his  said 
arrest  ten  thousand  dollars  of  the  Franklin  County  bank  bills, 
said  bank  bemg  situate  in  St.  Albans,  in  the  State  of  Vermont, 
one  of  the  Uûited  States  of  America,  and  two  loaded  revolvers. 
And  I  hâve  reason  to  believe  that  the  said  sum  of  ten  thousand 
dollars  was  feloniously  stolen  by  the  said  Hutchinson,  or  by  others 
with  whom  he  was  acting  in  concert.  ^ 

Wherefore  I  pray  for  justice,  and  hâve  signed 

GUILLAUME  LAMOTHE,  ' 

■  -     ^  '■  Chief  of  Police. 

Swornbefore  me,  at  Montréal,  this  ) 
27th  October,  1864.  j 

J.  P.  Sexton,  Recorder. 

*  Mr.  Kei-r  pipened  two  principal  grounds  of  objection  to  the  com- 
mitment. 

.  1.  That  it  coutained  no  charge  of  any  offence  for  which  the 
priaoner  could  be  committed  ;  "  suspicion  of  felony"  not  being 
such  A  charge. 

2.  That  the  warrant  of  commitment  contained  no  limit  as  to  the 
time  dnring  which  the  prisoner  was  to  remain  in  confinement  : 
thougfa  the  time  for  which  he  could  be  remanded  was  ezprenly 
limited  by  the  statute  ;  and  though  the  text  writers  laid  it  down  as 
a  rule  Aat  the  warrant  should  déclare  the  limit  ;  and  though 
the  form  contained  in  the  schedule  to  tiie  statute,  and  the  forms 
given  in  the  books  were  ail  so  framed  as  to  limit  the  time. 
/Mr.  Abbott,  Q.  C,  followed  on  the  same  side. 

The  fact  that  the  information  contained  no  statement  that  war- 
ranted  a  suspicion  of  felony  under  the  law  of  Canada,  was  also 
insisted  on. 

ftMr.  Johnson,  Q.  C,  on  behalf  of  the  Crown,  opposcd  the  appli- 
cation, on  the  ground  that  the  warrant  was  sufficient,  and  Âat  the 
information  disdosed  a  sufficient  ground  for  the  imprisonment,  and 
further  on  the  ground  that  being  remanded  for  examination  only 
the^roceedipgs  against  the  prisoner  should  not  be  interfered  with. 

Mr.I>wUn,  ou  behalf  of  Ue  U.  S.  authorities,  folloWed  on  the 
8ame4aide.  ; 

His  Hjonor  took  time  to  consider;  and  àt  2'P.  M.  the  saine  daj, 
j^ûenà  the  fdlowing  judgment  : — 

IWwana&t  of  «ommitment  charges  the  prisoner  mûrnuptèùm  of 
ftUn^jmà  oràetB  his  commitment /or  examinatioti.  ObjétftiooiB  are 
.madeio  botb  tbe,geôenility  of  the  charge  and  the  tinliiàited  rëniand. 
Jfow  it  ia  tnot  Àécm»r>9  thi^t  tho  nflff'nftfl  f^^ft^l]<^  be  descrîfeed  wifli- 


Ihè  nicëty  ïndT  ieSEÎmcarprecision  of  an  indictment,  bat  the  prisoner 
ahoold  be  charged  with  some  le^ly  dèfiued  and  weU  known 


4.. 


kiH.ii^Ji.Ji^Jf^'Ù 


y^O'^  <, 


8 

it  «  not  «efficient  sfanpl/to  designateTe  S^  b^th^naLTof 
ihe  elaas  of  «ffenoes  to  which  the  mairiatrate  rnav  iLZ.  ^    -f 

the  ab8«je  of  any  stetutor^  provisions  prescribiM  ite  foW^^ 
contents  does  not  eufficiently  state  tho  offenoe  bv  fîm^i!  ?^ 
ling  it  by^the  class  of  crime!  U>  ^uT C^rJ^SVS: 
may  oonflider  it  to  belong  ;  ifc  should  state  tb«  fon<L  «k^  maçatrate 
«titute  the  oftncé  with  firiBcienJZtlSil  to  1^^^      %'^^- 

charge*  agamst  the  praoner:.  if  commirent  K  do  thT!»,« 
pnsoner  onght  to  be  discharged  from  it  •  S  S-^n.»  i  i  î® 

décision  is^xplained  andTSed  bv  Mr    H  f J  !  ^^'î  ""1  *^^ 

bat  wiUKmt  HDT  (bct  to  »li,w  ite  SXK^     "''  •1>™»«>°. 


i 


nuiup.    li^oarfçgj  to  iay^nHJWnpôn  ans 


jnlpable  «iror. 

hese  two  objections  toe  formai  against  the  fiwe  of  the  commit- 


iA^ 


I 


iA^i»«li^ 


ment,  and,  to  my  mind,  render  it  bad  and  defective.    I  hâve  con- 
siderjd  this  comiintment  simply  as  any  other,  issued  in  the  cour^ 
^l'^^^I^^^^i^.^^oreour  magistrates,  upon  commitaie^ 
for  local  otfences  cogmzable  bv  çrovincial  magistnitea  und^Ae 
Wovimona  of  our  loca^  laws,  an(f  àould  not  hâve  advanced  beyond 
the  comnutment  itself  but  for  the  urgency  of  the  couasel  agS 
the  pnsoner  in  directing  mj  attention  to  tte  information,  wiâ  the 
View  of  Bupplementmg  ^e  i^rmaJ  defecte  of  the  commitmént  by  Se 
other  ments  of  the  mformation.    This  latter  document  inforS  the 
mag«teite  tiiat  the  hiformant,>e  poKce  officer,  had  amsSf  the 
pnsoner  on  suspicioA  of  having  committed  a  felony  at  St.  Albans 
Kl  the  Stete  of  Vennont,  one  of  the  U.  S.  of  AmeVica,  ic     ffî 
document  is  exceedmgW  loose  and  defective,  and  does  not  iustify 
the  charge  set  put  m  the  commitmént,  which  in  this  case  d^d  not 
issue  j  meromotu  of  the  magistrate,  but  upon  this  information. 
Now  the  law  clearly  requu^s  that  the  commitmént  shaU  stat^  some 
-  gyd  cause  certem,  showing  substantially  a  criminal  matter  over 
which  the  committmg  magistrate  has  jurisdiction,  and  for  which  the 
former  ma^^  be  le^y  committed,  id  that  crJminaJ  maTter  must 
be  stated  witii  certainty  to  distinguish  it  from  otheTXn^es     Ce 
of  this  can  be  extracted  from  the  information.    Viewed  as  infoZa! 
ùon  pf  a  crune  committed  m  this  Province,  iè  wants  every  légal  in- 
grédient to  give  it  eflèct;  taken  as  the  information  of  a?rime 
committed  m  the  United  States,  it  is  plainly  one  /orirWch  the 
commitbng  magis<Tate  could  bave  no  juriSdictiJn,  bei^g  done  in  a 

wîSfo^'S^'  »?<*' r'^over  not  in  ihe  categoiy  of  oflènoes  for 
_  which  extradition  is  aUowed  under  the  tre^ty 

It  bas  been  urged  that  ihe  allowance  of  the  habea»  corpus  will 
^^Ir.""*^-  ^'ST'  .f  J"'*^^^-  ^«  ^*'  howevertSot  be 
ment  to  detain  the  pnsoner,  as  m  this  «ase.  Even  in  tSe  course  of 
the  exammation  of  a  pnsoner  before  a  magistrate,  where  S  is 
a  specid  charge  enreffle  t  is  quite  compétent  for  'a  magistrate  to 
admit  Ae  pnsoner  to  bail  m  <^  meantiml;  and  this  doS  nS  pr^ 
vent  ffle  contmuance  of  the  eçunination,  which  would  go  on 
although  the  pnsoner  is  at  lar^under  his  bail  bonds  ;  fr  S 

sbll  the  exammation  would  not  be  interfered  witii.     Now    this 

aUowance  of  the  hcU>eat  corpus,  and  as  certainly,  uDon  a  defèotivA 
coûtaient  IJe  the  presSTSe  allowance  of  Se  ÎS  ca^ot  W 


lem^T^  refufled. 


>it  granted  wtumable  instanter. 
Tbs  folTowing  ia  4he^  ffleter^g  fetur&  te 


corpus: 


the  wrifr^  of  Aa*f d» 


5 


PROVINCE  ÛF  CANADA,  > 

Dùtriet  of  Montréal.       J  ' 

to  wit,  on  the  27th  and  SoK™  «f^Xw  „™1™  ^'À'^?' 
»«nei,™oom4w^nt.  tte^ïd  Sro?-ot  »r£S:T 

PHOVINCBOF  CANADA,)"       ^^^^„  ^ 

Dittrictof  Montréal.        \     POLICE  OFFICE. 

.  To  the  keeper  of  the  Common  Gaol  of  the  said  District  ^^t 

[^•«J  S«\  T'.'"^  ^™«°^  H.  Hutchinson,  of  tL  2S  of 

oatti  mth  suspicion  of  felony  :  Thèse  are,  therefore  to  fuflioSïï 

S'i^uZV'^tr^'^^  'T.'^'""'  cûstod/re'rodro;'s 

said  WUham  H.  Hutchmson  and  him  safely  keeb  for  exammatîmr 
Given  under  my  hand  and  seal  at  Montréal,  this  Iwen^rventh 
day  of  October,  one  thousand  eight  hundred  jiid  rixtv fon^i^îi 
twenty-eighth  year  of  Her  Majes^s  re^  ««tj-four,  in  the 

(Signed)*     J.  p.  SEXTON, 

Recorder. 


POLICE  OFFICE. 


PROVINCE  OF  CANADA, 
District  0/ Montréal. 

^'*'i2SÎÎL'^*^?M''^'^^^««°^  other  peace  officers  in  the 

Montre^^^^^ftini  :  WwSL  wSlî  a'!?  f^'  ^'  i^'^^*  «^ 
town  of  St  Alba^  in  ZXÏT^^  Hutchmson,  late  of  the 

mmmmm 

sire  ireapoù  aiû^  iSSÎmmi  to^Ja^  «wi^ifttïcerlaiii  offen- 
«ne  M-,.  Wen.  BeKf^'  fX»!?Sl  ^Sfll^ïliCÎS 


l" 


«ih4«J  ^w, 


.A  -..v, 


.('■■ 


bin,the8aidMarou8  Wells  Beardsley,  in  bodily  fear  and  danser 

mtU>  the  amount  of  «eventy-six  thousand  doflare  cnrrent  mLv 
of  ihe  said  United  States  of  America,  und  of  the  valuerf  LvS 
su  thousa^d  doUMs^  current  money  rforesaid,  of  ^rrl^i  «^ 
property  of  the  Pranklm<!ounty  bV  at  St.  Albans  ÏÏSida 

S'^'^r'*''  ?°?*'*"^î  and  recognied  by  the  lawsTZiiî 
State  ofTermont,from  the  person,  custody  and  Dossesaon  «mî 
agau«t  the  ^  of  the  said  iSarcus'  Wells  ^eîlC^  iaï^ 
présence  then  and  there  felonionsly  and  violeXZ  ^  ti^ 

of  Vermont,  m  such  case  made  and  provided,  and  agabst  the  Wce 

flt  TÏr.? •  Hutehinson  and  hun  safely  convey  te  the  Common  Gaol 
atthe  cityof  Montréal  aforesaid,  and  there  deliver  him  toTe 
kee^r  thereof,  together  with  tins  precept  ;  and  I  do  heS.v  co^! 

swd  Wilham  H.  Hutchinson  into  your  custody  in  the  said  Common 
Gaol,  and  there  safely  te  keep  hii  untU  he  sEall  be  bXht  S 
me  for  the  purpose  of  an  ;exaï,ina^on  npon  oath  of  Wy ^^rson^ 
persons  touching  the  truth  of  the  said  charge,  in  c2S^Sb 
the  provi^on  6f  the  Statutes  made  te  give^eff^t  rîrïr^tv 
between  Her  Majes<y  the  Qneen  and  the^nited  Stat^  of  Wc^ 
toî^^/^'ZZ^LT'''''  '''^^  ^«^-•ï->on  thé 
^  Given  under  my  hand  and  séal,  this  twenty-ninth  day  of  October 
in  he  year^of  our  Lord  one  thousand  eight  h^mdredZ|  Lty5^^^^^^ 
at  the  said  city  of  Montareal,  m  the  District  aforesaid.  ^        ' 

(Signed)  CHAS.  J.  COUIISOL,  J.  S.  P. 


And  that  this  is  the  cause  and  the  only  canse  of  the  canture 
comimteent  and  détention  of  the  said  William  H  nïtehZn  b' 
net  Majesty's  Gaol  aforesaid,  the  body  of  which  said  William  H 

AtSZd  i^"'  -r  TZ  *«  t7  writ  it  is  commanded  me 

SSJ    •   Îu*^"  ^^T.^^  ^*^*'  ^  twenty-ninth  day  of 
tho^l'^n  '  ^«"<7-««»î*»»  y«»r  of  Her  Majesty'Jreign,  ÏÏJ  in 
the  yeaçofPur  lK>rd  one  thoosMid  eight  himdlîed^md  8&.foar 
(Signed)  LOUIS  PAYETTB,  Gioler. 

.«CM  nafl  Dowwnade^oïit-^d  time-tiU  tho*»owiïfr^ 
ffwted  te  take  commumcation  of  it.    On  the  followSg  day,  fc 
JODQï  Badolit,  in  Chambers,  »u»y,  ueiore 


JETon.  Mr.  Abbott,  Q.  C,  on  behalf  of  —  Hutchinson,  sjfcated 
that  the  return  which  now  appeared  before  the  Judge  contained  npt 
onljr  the  original  commitment  of  the  Becorder,  but  also  a  subséquent 
one;  that  the  argument  respectmg  the  Recorder's  commitment 
having  disclosed  tiie  defects, — the  second  wais  prepared  with  the 
vieW  of  supplementing  the  first.  The  «pommitment  of  the  Recorder 
was  rendered  inadéquate  by  the  omission  to  state  the  daj,  the  place 
and  the  time  when  the  prisoner  should  be  brought  up  for  examina- 
tion.  The  attempt  to  cure  the  defect  in  jtke  other  warrant  consisted 
in  placing  at  the  end  of  the  despHption  of  the  statute  in  the  warrant 
the  words  "  on  the  second  dav  of  Novomber  next,"  making  the 
commitment  read  to  the  effect  tiiat  the  jailer  was  ordered  to  return 
the  prisoner  for  exanùnation  on  that  day  according>)  the  tenus  of 
the  statute  passed  for  such  and  such  purposes,  on  the  second  of 
November.  As  the  return  set  forth  the  second  commitment,  it  was 
neoessarj.  to  show  now — and  he  was  readj  to  do  so,  that  ît  was 
insoflScient.  The  course  of  proceedings  adoptéd  in  the  subterraneah 
régions  of  the  police  office,  was  very  extraordinarj,  for  as  fast  as 
one  commitment  was  found  fault  with  and  iits  on  the  pom^  of  being 
quashed  by  his  Honor  the  Judge,  another  was  submitted  in  order 
that  the  accused  might  be  kept  in  jail  fh)m  day  to  day,  tiU  the 
leamed  gentlemen  who  drew  up  the  first  commitment  shoidd  leam 
from  the  prisoiner's  counsel  how  to  prépare  one  in  a  légal  and  yalid 
maoner.  As  long  as  the  clerk  of  the  crown,  acting  apparently  in 
ihe  capacity  of  clerk  of  the  magistrate,  continued  to  fiirnish  affi- 
davits  and  commitments,  he  should  be  careful  how  he  managed  the 
business,  and  not  illegaHy  infringo  the  liberty  of  individuals.  The 
Judge,  however,  would  doubtless  take  good  care  that  personal  free- 
dom  should  not  suSèr  from  any  contravention  or  overstraining  of  the  ^ 

iaw. 

Mr.  Carter  objected  to  being  styled  clerk  of  the  magistrate. 
He  was  not  such,  and  had  never  acted  in  thaf  capacity. 

Son.  Mr.  Abbott  .observed  that  ail  he  could  say  was  this,  that 
when  he  arrived  at  St  Johns,  as  counsel  for  the  prisoners,  he  found 
the  leaJmed  gentleman  who  was  clerk  of  the  crown  for  the  District 
of  Montréal,  dràwiqg  up  informations,  preparin^  commitments,  and 
actipg  in  the  capacity  of  ma^strate's  clerk  m  ue  District  of  Iber- 
villéil  Thèse  were  thé  duties  of  a  magistrate's  clerk,  not  those  of 
clerk  of  the  crown  for  the  tHstrict  of  Montréal.  ■*' 

Mr.  Carter  said  that  if  the  leamed  counsel  wanted  to  know  in 
what  capacifrjr  he  acted,  he  would  tell  that  gentleman.  He  would 
tell  Him  that  ne  received  a  telegram  from  Hon.  Mr.  Cartier,  desiring 


him  to  go^  St.  Jphns  toasnst  Judge  Oourgol  iff  carrying  on  this 
investigation. 
Son.  Mr.  Abbott  said  that  whether  the  leamed  gentleman  had  . 


i    <  i 


Lt^^Ui.  wLi,       *  .     h4  ' 


^  '      .      .    ^         <.^ï 


v. 


8 


personsZLT^STte^n?»  f?°'P*'°^  *^^?""*  *«  extradition  of 

of  the  coufltnr  under  S  Dro^.tt^S^^         f ''?^«  ^^  ^^« 
and  it  waa  a  very  Vtra^^e  mK    ? ^'^ ^î*^ P^*''®^  thomselves; 

ment  to  séhd  sXXffiiaVa?^^^^^  .T  ^'Z^*  f  ^'^^  S^^^"^' 
for  any  such  purD^      îS  î.?^  ^^  *^^  ^"ï««  «f'  *I»e"-  offices, 

X  Mr.  Séxton  was  quSd^lD  tha  tt  .tTT^^ft'^^de  out  by 
ditioMearly  poiïted  out  Z7ol^:\^t  T^^eST'^TZîS^ 
was  bound,  on  information  beins  laid  beforeSi^ Tf<,„  A  magistrate 
f^r  the  arro8t  of  the  partj  aS?d  ald  L^V^  T®  ^?  '"^'^^ 
eiamination.  The  m^L^art^n  hSl^IL  V""  ^'^"«^*.  "P  ^«'• 
factfl,  and  hear  the  eviSe  wÏÏ  ;?lr  #  î  ^  ^"""^^  ^*<»  *« 
him  io  send  the  acc^ed T  S'^fc  ^eSS^^Z'  would  authorize 
terms  of  the  statute,  and  to  bVriv^n  L  „n  t)^*  "^"T^"?*  *°  **« 
nor-ffeneral's  warranf     Ti.,f  1^    ^?P  ?"  *"®  ^^^«  of  the  gover- 

simply  /warrant  send^rtïto  W^^^^^^^  i*  ^«« 

before  the  proper  authoriiy^  We'Jr^tlff  T^^^^  ^"^"«^^^ 
this  case  the  terms  of  t^  8tah,2>  ^«7    ^T'^Â*^  ^*^-    ^ 

magistrate  hadexTededhLj^cUctatand^^'^^^^T^  ^^' 
fsolmyn^.  TheCer^tefCnw^nt'rSo^r! 
sdpposmg  the  magistrate  had  nower  to^^mT!?*?       ^^^"^  *^*' 

should  hâve  been  rectedTl>S.i^>^      fôr  exammation,  when  he 

veyed  iSe  idelStL^f  ^  *^  of  November,"  3ly  con- 
o^ZtZyThey^trr!^^^  T  r^'  r^  *'«'"«  ^*o  forcJonly 
pnsoner  Wi  thT  saZ  anHhtn' '  ""^  S^  «ommitment  of  thJ 
^ovembor,  -. were .  mterwlâïèd  at  tR^  An,r\>rîi:.  -.»-^  <w  ot-  — 


^ovembftr^^ZL  :T^  »*"^  jaese  few  words,  "  th«  2nd  dav  oJl 
Jiovembor,  ^^.^re  mterp^l^î  at  the  enrof^e  wariSt  te^ 


»â^^s\-k^jtÉitMhâ-^''   .i&w 


V  ,  !  ^  t^!^        «é'ilfi'  #  b^^  ^^H^  '^U&llL-Lfr  £  ^  "^^'^ 


-        9 

lî/SV  ^^  ^ot  p88e83.  Supposing  tho  interpolation  to 
mean  that  ^e  exammation  was  to  tâke  place  on  thè  2nd  dav  of 
November,  «hère  waa  no  order  to  the  jailer  to  bring  him  up  on  Ôiat 
day  ;  he  waa  ordered  sunplv  to  hold  the  accused  in  cuatody.  The 
learned  gentleman  then  referred  to  the  authorities  cited  oi  Satur- 
day  in  référence  to  Mr.  Sexton's  commitment,  shovving  the  necea- 

should  be  brovght  up  for  examination. 
Afler  some  discussion, 

^His  Honor  _said  the  first  question  was  the  irregularity  of  the 
whole  proceeding.    If  the  gentlelnen  opposed  to  âr.  Abbott  had 

""^J^  .  i^?u'*''î^*HP'^°®''  '^«^e  discharged  cm  the  first 
warrant,  then  they  might  hâve  arrested  him  on  the  2nd,  and'  the 
queption  of  habeas  corpus  woxM  hâve  been  unembarrassed.  Had 
those  gentlemen  taken  this  stop,  tl»  whole  thing  would  hare  been 
more  sabsfactory.  The  jailor,'fAly  could  nSp  haTng  the 
second  commitment  m  his  possession,  but  the  whole  liroceedin^was 
very  irregular.  *^    .  ~^» 

After  some  further  argument,  \ 

•valî^?v*^f  ïr'  ^'  ?•'  "^^  ^^  ^^'^^^  ^  ^*^«  *i°»«  *o  argue  the 
vahdity  of  the  second  commitment..  If  this  right  were  conceded, 
he  was  prepared  to  go  on  at  once.  ' 

ConsentWing  been  aecorded  to  Mr.  Johnson,  the  parties  were 
heard  on  the  vahdityof  the  commitment. 

Mr  Carter  c&me  forward  and  desired  to  be  heard  on  behalf  of 
the  police  magistrate. 

\u^'''\-A^''' ^i^^  ''^J^*'**'*  ^"^  *^«  S^"^^  t^at'the  question  of 
the  vahdity  of  the  commitment  was  a  matter  for  the  Judgé  alone. 
M:  Carter  renewed  his  application  to  be  heard 

«.n^T'K  '**^"  ??!it*''**  *^«  magistrate  could  not  be  repre- 
sented  by  counsel.  Further  the  statute  laid  it  down  that  a  cîerk 
ot  the  crown  was  prevented  from  abting  as  advocate,  counsel,  soli- 
citer or  proctor,  m  any  case  whatever.  "«'jBOU- 

T„dl«  5^  ^^  *l!**  ^,¥^-  ^?^"  ^'^^'^  ^«^«  ^  represent  the 
Judge  êî  the  peace,  he  could  not  be  heard.  v  • 

ittr.  Carter  said  he  had  a  right  te  be  h.eard.  \    .>» 

1  he  Judgp  of  the  pejyje  came  forward  and  said  he  hak  Ho  désire   • 
to.  hâve  counsel  appear  on  his  behalf;  for  if  any  thinri  had  to  be 
said  respectmg  the  return  he  could  say  it  himself;         S  "«*««>  do 

♦K.  «       f '*'*  **•?  ^®  ^^  ,"***  prepared  to  discuss  the  vaUdity  of 
the  secondcommitment,  as  he  had  not  had  sufficient  notice. 

^.5^K     i!  ^^^".'tft  *^?'  **''•  ^«^^  ^  présent  on  Satur-    - 
Ira  request  wss  granted.    He  had  had  ample  time. 


1 


■* 


*»,«.''**''  B^oi-BY  intimated  he  would  complète  the  hearing  of 
ine  case  at  two  oclock.  •  o  ^* 


i  ii'«à«ids-  J'ïrf  '  k, .    (!*.  ' 


■■l  I 


10 

Ai  two  o'clock  before  His  Honor  Jddgb  Badgley, 

»a»    \S^''!.ï^^®*^'*/'*^°  pri8oner,8aid  that  the  whole  question 
waa,  wùôther  the  commitment  set  out  io  the  return  of  the  iailer 

'     Sf  *  "S  T  '''■  '^^-    '^^^  ^««  *^®  °°Jy  q"«8tion  on  whicÊ  His 
■nonor  had  to  pronoimce. 

Mr.  Deolin  said  he  waa^  not  prepared  to  argue  the  validity  of  the 
warrant  or  commitment  to^ày,  and  as  far  aa  was  in  his  power  he 
would  protest  agàinst  this  mode  of  dealing  with  a  question  of  this 
imprtaqce.  Before  the  second  warrant  could  be  taken  up  the 
pnsoner  s  counsel  must  come  before  His  Honor  with  a  second  péti- 
tion for  a  wnt  oîhabea»  corpus.  ^ 

Mr.  Johmon  on  behalf  of  the  Crown,  said  he  did  not  see  whv 
the  Judge  should  grant  an  order  for  a  discharge,  when  there  waa 
no  pétition.  o  >  cio  nao. 

«  A     ST""  **^^^«^  *^a*  it  ^M  PÏaûi  ©nough  the  haheas  corpm 
and  not  «le  pétition  c<^n8tituted  the  record.     The  appUcation  made 
by  Mr.  Devlin,  m  the  mterest  of  various  parties,  to  havc  time  to 
argue  the  second  commitment  involved  waa  deserving  of  conaidera- 
ùon,  for  the  questions  which  might°arise  upon  it  a  very  larce 
branch  of  what  might  be  oaUed  international  law.    This  was  a 
matter  of  very  great  importance,  and  he  would  suggest  to  the 
counsel  on  aU  sides,  for  the  purpoàfi  of  avofeling  further  discussion, 
tnat  the  second  commitment  shoald  ûol  now  be  taken  up     The 
whole  proceeding  had  been  very  irregular.    The  man  might  hâve 
been  discharged  on  the  first  warrant,  and  before  he  left  âe  room 
been  arrested  on  the  second,  but  instead  of  this  both  warrante  had 
been  nuxed  up  m  a  very  irregular  manner.    The  zeal  of  the  p^ose- 
cujors  had  outrun  theu:  discrétion,  and  the  whole  thing  was  a  com- 
plète senes  of  blunders  from  first  to  last,  and  this  evidently  to 
make  confosion.    It  would  hâve  been  bette*  in  order  to  simplifj 
the  thmg  if  the  first  warrant  had  been  disposed  of,  and  the  second 
commitment  could  then  hâve  come  up  substantiaUy,  ani  the  ques- 
tions mvolved  been  fairly  discussed.    He  would  suggest  t?  the 
^*^ÏS;rr-  °-\f^!  ^  tet  j«dgm*nt  go  on  the  fi«t  warrant, 
reservmg  tiieir  nght  U)  take  substantial  issue  on  the  second. 

Jim.  Mr.  Abbott  obeerved  that  to-morrow  was  a  hoUday,  and 
the  nnsoner  would  be  kept  two  days  in  jaU,  during  which  time  any 
number  of  apphcations  might  be  made  against  him.  The  obiect  of 
pnsoiwr  B  counsel  was  to  hâve  him  released  from  Ulegal  détention 
.  Judge  Badgley— The  whole  thing  that  cornes  up  now  is  the  suffi- 
ciency  or  insufficiencyof  the.  return;  and  the  question  cornes  up 
on  fomalor  technical  gromk.    The  Judge  only  has  to  look  oï 

^^^4??^^  ^  '^-^*  '^  bears^ut  jLBugcieût  commit- 
wirt.  -rttmtitdoea  bfearout  a  sufficTent  commitment  to  enabir 
^  •    t       ^^"        *^  priaoner  for  the  présent.    That  return  i» 


4i*.i 


11 

After  some  further  discussion  the  warraut  issued  by  the  Reoordor 
was  pronounced  by  the  Court  to  be  illégal,  nuU  and  void;  and 
Frida^  waa  appointed  for  hearin^  the  application  for  the  diaoharge  of 
the  prifloner,  from  the  warrant  jssued  by  the  Judge  of  the  sessions 
of  the  peace.    The  prisoner  remains  in  jail  in  the  meantime. 


I" 


COUBT  OP  QUEEN'S  BENCH.  >        "*""'  °'  Writof^b.»  Cdrpu. ." 

In  Chatnbtn.  C  (Before  Jastices   Atlv»,   Hordilit    and 

)  Dbumhond.) 

Wbdnbsday,  Nov.  2nd,  1864. 

^is  moming  the  Court  was  crowded,  to  hear  the  argument  and 
décision  on  motions  for  a  writ  of  habeas  corpm  in  behalf  of  the  St, 
Albans  raiders,  at  présent  imprisoned  in  the  Montréal  jail. 

Hon.  Mr.  Abbott,  Q.  C.  ;  Mr.  Laflanune,  Q.  C.  ;  and  Mr.  Kerr 
wppeared  for  the  prisoners.  Mr.  Develin,  representmg  the  United 
Stfttes  Government,  aasociated  with  Hon.  Mr.  Edtoonds,  of  Ver- 
mont.  Messrs.  Johnson,  Q.  C,  and  Carter,  Q.  C,  appeàred  for 
the  Crown.  Messrs.  E  A.  Sowles  and  Edson  were  présent  in  tiie 
interest  of  the  St.  Albans  banks  robbed. 

^f'  ^^'^  pfeiênledv  a  pétition  for  a  writ  of  hdbeaa  corpu»  in 
behalf/W  Samuel  Eugeite  Lackey  and  thirteen  other  pi^oners 
conç6med  in  tiie  St.  Albans  raid. 

Mr.  Justice  Mondelet. — Are  ail  charged  with  the  same  offences  ? 

Mr.  Kerr. — ^Yes. 

Judge  Monâdet. — ^Tith  spécifie  offences  ? 

Mr.  Kerr— One  offénce  is  murder  committed  within  thé  jurisdic- 
tion  of  the  United  States,  and  the  other  robbery.  The  prinoiples 
whiçh  would  apply  to  those  commitments  are  gênerai  and  applicable 
to  the  whole. 

Mr.  Omrter  said  he  was  clerk  of  the  crown,  and  had  a  right  to 
speak  on  the  présent  occasion.  He  would  beg  to  infonn  the  Court  that 
this  was  not  a  final  commitment,  but  one  for  examinatiaa,  and  that 
the  prisMierls  were  now  before  the  Judge  of  the  sessions,  who  was 
about  ffoing  on  with  the  examination  of  witnesaes  and  other  requisite 

Srocedm^.    The  argument  for  a  writ  of  habeà»  corpu»  was  actually 
da^g  tiie  argument  about  to  take  place  before  the  Judge  of  the 
sessions.  -^ 

•J'iJ»'*  -^^twn—Asked  for  the  pétition,  which  was  handed  to  and. 
^^M^'    %%n.Mk<wi^jagthere.any  final  commitmflnt? 


MrTKèrr.—. 

Jkdge  Ayîmn.—TiizX  is  the 

MUr.  Kerr  asked  to  be  hei 


the^^ 


of  tilie  matter. 


,." 


S-rltij 


ii*-. 


'  %  ^«Ni^v 


12  ' 

ii^^ltï3.K?to*Z-?''-'n*°  "H  '"»'■»«  «•- 


«ilmen.  for  trial,     îl.  deScetid^S"SL%;'f^'  "  "^^ 
this  caae  were  prooerlv  onmmittirif  ■    ?.  "  ""^  pnsonere  in 

interfère.    The^mK  wStll  f  T?^**'??'  ^^^  «<''J<ï  »<>* 

cause,  it  becomes  neceœarT  orTf^^Ki  T^*?^  *î^®^  reaaonable 
or  forther  examinaHnf!^?'  ^f  ^*^^I«  *<>  defer  t^e  examination. 

justiceTreCTotllc^X'J^^^^^^^     the  justice  J^ 
upon  his  or  thpir  woll^!  accusea  i^ppears,  or  has  been  bK)uffh(i.«D 

a?^used,  for  sùch  El  T^'  î"^  *^*  ^  *^°*"'  ^'"'^^  «»«  pW 
rem.ndi»gpri^„e«fo"  !S;^'y  ?'™'»o«ej™ficea..ri2t  of 


for  ever,    5i7rrn;;2l!r*        ^T*^'  **"*  °^*  *<>  ^^«ep  them  there: 
tune.    Thèse  pnsoners  were  cpmmitted  for  ex^iàatiJLevJS 


"-"■M 


18 
days  f go,  and  bafïï^  been  brou^ht  up  for  examination.    They 

^JSLîS  il^n?  '°T^j'"i/?îL**^tT*  *^*°*y  y«^'  «^^er  d 

P  ♦  XT?^u  ^u  °>*««*^^  ^«i  not  exeroised  his  disoretion 
r  Jj  %.{»°»«  «îew  pnéonors  m,ght  bekept  in  îaU.  InsteadTsayine 

them  up\  Ahey  were  committed  for  an  indefinite  period  Thev 
mi^t  hâve  been  brought  up  in  the  interval  that  had  eWd  eince 
their  commitment  butle  had  no  right  td  commit  tham  fora  longer 
penod  man  eight  days.  v  '""ftc» 

\^dge  ^lmn.—The  commitment  èears  date  the  27th  of  October 
JudgeDrummond.-'Ihe  eight  days  hâve  not  expired.  Thè 
magistoite  remanded  from  day  to  dav  m  gênerai,  but  ^party  ae- 
gneved,  -when  the  eight  days  expired,  if  no«»previouBly  brought  up, 
mi^t  appear  aï,d  8a;r  that  the  magistrate  had  tfxceedid  hisser! 
If  the  coimsel  wéjre  m  thàt  position  he  could  understand  it 
KMr.  45io«.-Qf  course,  I  would  be  in  àmuch  stronger  position. 
T6  be  sure  it  is  au  ^lementery  principle  that  the  warrtntW  com- 
mitment must  show  t^e  jurisdiction  on  the  face  of  it  ;  but  this  is  not 
a  warrant  of  remand  lù  conformity  wîth  the  statute.  By  that  same 
warrant^^hich  sends  a  prisoner  to  èonfinement,  the  jailer  is  ordered 

Ti^«T£i%*r°-^v.f.°*'  t^y^ified  in  the  commitment. 
The  intei&on  «J  «je  Jaw  is^lam,  that  by  the  warrant  which  commits 
bT^tfled  <l«oh^^,  under  certain  circumsta^ces,  is  to 

.  JJirf«7«  iWbmfcZe^— We  know,not  how  thèse  prisoners  are  before 

,  ishSn  T^eat^';^  ""'^  ""^^'"'^  ""'^^  *^«  P^™  ^'^^ 
.  Mr.  Abbott. — 'Np.  j        X 

xlfïî  ^nie?e<._8upp^e  they  ire  to  be  dealt%ith  under  the 
Aflhburton  Treat^,  is  the  Judge  of  th<^  sessions,  in  his  mode  of  action, 
Sî     A?^        exclusively  govenjed  by  thia  atatiite  ? 

«.f  o  '  ïf  *  Î1'"1K?^J'P'T\  *^®  ^*^  observed  in  this  case  does 
not  apply  to  the  Ashburton  Ti5aty-if  we  were  called  on  to  argue 
whether  a  justice  of  tje  peace,  w\o  commits  theseprisoners,  is  boiid 
tofoUow  the  termsofthi^act,  wfe  mij^it  urge  thatitis  4e  terma 
ôf  our,  statute  wbch  should  regulate  the  conduct  of  such  justices. 

rei^d'ÏS.  '^^"^"  ^''^^'  *^™  ^  ^^  power  given^to 

^i/A^Zf'^'^''  ^"  "^  P^"^'  *^  '^"^^  ^^«-  ^' 
al,  ^xÀ  ïf  ^^«'"•^SupçoBe  it  to  be  a  necessary  conséquence  that  there 
^ouïd  be  ar^^J^^t  ^ot>>  confine/ to  somo  perieSSl 
S.L«^^    i®  ^}v  ^r*''  K*^g  this'statute  altogSroutofthe 
question,  under  the  m  passed  to  f^ciUtate  the  exécution  of  the  Ash- 


r    H 


"O 


f  i 


I  ! 

I        f 
I  I 

^        , 

u\. 


14 


,Ai 


I  t 


.kuî'Kf  •*l"»™wiJ.— B  9»  magiatrato  dou  not  nime  Uie  d.»!,. 
iS'PicZT"'  *"  *°  '^  '"*'  ""•  "-  «^^  "«P"'»  "t"  ô"f 

Jitrf^e  MotukkL—lî  that  magistrate  exceedahia  iuriadû^H^i 
AeremuBt  be  a  remedy  ;  if  he  coSimts  an  aot  oZDZik^wfî 
be  restramed.    B,^  the  po^r  of  remandi^  doesS Tven  T1 

lir*    .•?,    ™®^®  o«"  •>«  no  exceas  of  jurisdkjtion.  "V""™" 

^'■•^«^•-matrsaidbeforeajScfwpeatb-.thataniaimb^fn 
haa  no  power  to  commit  a  man  for  an unliSted tim?  îuS!^t 
commite  a  pnaoner  for  a  longer  neriôd  than  the  law  ^oJJTÙ 
entitled  at  once,  without  waiti»«^fbr  the  emirah*»»  aP  i?^  ;  '      . 

what  extent  of  jnnadiction  he  ttaomea  to  himaelf.  If  the^aotT 
done  under  the  atatute,  he  camiot  remand  for  a  longer  neri^fhîn 
the  tane  proTidéd  for  bj  (jxe  statut.    I  mei^ly  3  ,S5^!f  f^" 

a^utSSr.r  ""^  '^''-^'^^^  conaidera^f  alïïlSi;^^ 

Jlfr.  iTerr.— The  firat  point  to  be  determined  ia,  whethôr  uniÏAr 

r^r^'^T  ^T".**^  '^'^  a^inandfor  fuXeSST^on 
a  wnt  can  laaue  for  a  habea»  corpuê  or  not     î  dt^h  tO^    a 

mitment  being  muahd  and  bad,  the  rieht  to  annliSS^  ^?  r 
^„f^^d^notexiat  ^admit  fi  wheÏÏP^^^*  '' 
mitment  prexanmation  ia  gool^n  ita  fece,  no  wrifâ 
«*J^^e  ;  bot  irhm  auch  a  warrant  ia  bad  on  fcfiir  al«iî  nf 
i^iH^T^."^  '^«-    I  *oald  aàk  ia  there  no  dilfewnce  betwLn 

ijMiû  np  at*  stated  time,  as  laid  down  in  the  atatute  ?'  If  we^ 

^  ^  ^^i^^  thia  allégation  we  ahaU  be  tofd  that  pfSnîS 

ntt^B^torenonghttoawritofAd6«à»<wyM«.  Aidwould 

mi^  ^^orpus  be  aa  appUcable  tèree  yeara  henôe 

>?^ïf  tiie^wn  oamejbrward  and  aaid,  «'iheae  men 

JÏÏS^        ^^'  *°«"  hftve  otight  to<iie 
wHetH&r  imder  «xsnÈMttion  ofnotri™  warrant 


%. 


for  their  qômmitmoat  be  imperfeotty  drawn  up,  and  if  it  bas  b«en 

àhown  that  thè  raagistrate  exceeded  hîa  jurisdiotion. 

„    Judgf  Aylwinmà  Uie  mattei- Waa  very  eaflily  dignosed  of.  ,  An 

llPidicfttion  had  been  inade  ibr  a  Jiabeaê  càrpua,  m  oraer  thai  a  writ 

^TOttld  issuo  on  two  comcoitments.    Now,  eaoh  ôf  thèse  oommit- 

ihta  was  f^^r{ect\y  auflScîent,  .andi?tl\e  defence  would  take  nothing 

their  pétition.    -  ,• 

Judge  Mondelet  said  that  thiaaijleci^n.of  the  Court  vas  foonded 
on  elementary  prineiples,  whicK  admitted  of  no  doubt.  It  was  es- 
BontiaJ,  in  common  law,  that  tbie  Judge  ôf  th«  seadons,  who  was 
invested  with  jurisdiotion  correctly  exercised,  ahould  ha?e  the  powef 
of  remandipg  a  prisoner  at  hig,  own  discrétion.  Thèse  mon,  for 
whom  açplioatioiv  waa  madfe,  must  and  shall  be  proteoted  if  ttiey 
havo  a^nght  to  it,  and  the  comipunity  must  and-Bûaîl  be  pMtected 
accordmg  to  law^  -The  whple  mattor  shall  be'  oonducted  acçording 
to  law,  and  not  according  to  préjudice  and  pdpular  damor.  The 
Judgeswill  see  îEat  the  law  is  carried  out,  whether  the'|)«i4ie3 
accused  be  or  be^not  liberated.  In  this  oountry  the,  Judges  Àave 
nothing  to  fear  either  from  crown  or  péople,  and  will  do  théir  duty 
as  the  law  directs. 

Judge  Drummond  agreed  with  the  décision  of  the  other  fcwo 
leamed  Judges,  He  obserred  that  Messrs.  Abbott  and  Kçrr  had 
argued  the  case  like  expert  lawyérs,  as  they  were,  and  without  Oie 
alightest  design  of  exciting  préjudice.  The  Judges  had  to  perfonn 
a  Bolemn  duty,  and^je  hoped  that  ail  knew  tljey  would  do  it  without 
regtod  to  partv  or  p^dice.  He  agreed  with  hia  wmfrèrM  becauae 
be  believed  there  had  been  npthing  irregular  in  the  )m)ceeding8, 
though  the  most  regular  course  would  certainly  hâve  been  to  fix  a 
day  on  which  the  acQused  should  be  brought  upr-""'^ 

Judgt  ^y/mVi—The  order  of  the  Court  is,  fliat  the  defence  take 
nothing  by  their  pétition.  *       "- 


f    \ 


"»&. 


a" 


^'•1^4  u^ 


A  ■■;• 


Hjî 


i  il 


•k\ 


fi 


,u:_  "■■  '      16 

Province  op  Cana1)a,  j  To  ail  or  any  of  the  Constables,  or  otBer 
Ih^nct  of  Bermtte  \  Peace  Officers,  in  the  District  of  Iberî  Ue^ 
mereas,  Samuel  Eugène  La^key,  Squire  Turner  Teav^^  Alt 
manda  Pope  Bruce,  Charles  Moore  Swa^er,  George  ScSnneî 
î  ■  ^l?'ïï«^  Cdeb  McDowàll  Wallac?  James  AlexSerDSty 
Joseph  McGroriy,  Samuel  Simpson  Gregg,  Dudley  M^rerih^L' 
^r^nsdon  CoUms,  and  Marcus  Spurr,  tf  iate  of  the  toWofT 

4:1  T'-Si''l^/*""*^/^J'^*°^'^'  ^?  *«  State  of  Vermrt.oneof 
Ue  Umted  States  of   America,  laborers,   hâve  thirdav  Wn 
chargeai  «ponoatÈbefore  the  undersigned   Charles  Joseph  Cour 
o-L   r^^'^l^"?^^  ""^  ^^^  Sessions  of  the  Peace,  iri  anîfor  âe 
Cty  of  Montréal  including  the  District  of  IberviUe'afoiSd  ^nder 
id%rr1wl*^'  proclamation  to  that  eflFect  maTS^  pi 
ished,  for  that  they  on  the  nineteçnth  day  of  October  instant  at 
the  to^  of  St.  Albans,  in  the  State  of  VeJmont,  one  of  ^United 
States  of  Amenca,  being  then  and  there  armed  'with  cer^n  offen 
sive  weapons  and  instruments,  to  wit,  pistols,  commonly  knïîn^d 
called  revolvers,  loaded  with  powder  aïd  balls,  and  capS  b  ^d 
upon  one  Cyrus  Newton  Bishop,  feloniously  d  d  make  în  kLîdt 
t..^Zt-  ,??n,C^-«  NewL  Bishop^in  b<Sîy  feTr3    n' 
danger  ofhis  life  then  and  there  felonioudy  did  putfand  a  certab 
sum  of  money,  to  wit,  to  the  amountof  seventy  ^^.Smd  dolîS^ 
current  money  of  the  said  United  States  of  ALric^Td  of  th^ 
.ya^ue  of  seventy  thousand  dollars,  current  money  afowsïïd  of  the 
nibneys  and  pwperty  of  the  bank  of  St.  Albans,  a  b^dy^o^r^rate 
c(mst,tuted  and  r^cognized  by  the  laws  of  the  ^d  StLTvel! 
mont  a,^  the  said  United  States  of  America,  from  theTraîn  c^- 
todv  and  possession  and  against  the  will  of  4e  said  C^SX 
BisLop,  then  and  there  feloniously  and  violently  did  steTtake^d 
çarry  away  against  the  form  of  the  statutes  of  the  sa?d  Stete  of 

fo J!Tk  T  ^«^^f"-^  t«  command  you,  in  Her  Majesty's  name, 
forthwith  to  apprehend  the  said  Samuel  Eugeiie  llkey,  sZre 
Turner  Teavis   Alamanda  Pope  Bruce,  Charies  ^re^SwS 

AZZ^tlT^'ElT^^  C^ebMcDowall  WalîLe,  jS 
Alexander  Doty,  Joseph  McGrorty,  Samuel  Simpson  Grecir  Dud- 
ley  Moore,  mmas  Bronsdon  Coflins,  and  MarcC  SpuT^d  to 
bnng  Aem  before  me  at  the  Court-house  in  the  City  of  Moîîreal 
m  the  said  D^tnct  of  Montréal,  to  be  dealt  with  aJcling  to  the 
provisions  of  te  statytes  in  such  case  made  and  providS.  * 

saifetTt  Sr,^  f^Tl^""^  ?^*"^  «^  S*-  J«l^»«'  i"  the 
gg  imtnot,  this  twenty-foucth  day  of  October,  in  the  year^  »„,> 
Lord  one  thonsaurèight  hundred  ând  sixty-S^  «le  year  ^  oue= 
'  (Signed)  CHARLES  J.  COURSOL, 

•      •  Judge  of  the  Sessions  of  the  Peace. 


17 


WARRANT  ISSUED  IN  VERMONT.        ! 

s.J%^rl7n  ^^?^l  l'^'^T  ?^  *^«  •^"«^^««^  of  tl>«  Pei^^e  within 
^helIkT    ^Sr.V  ^r*»,klm,in  the  State  of  Vermont,  comea 

^v^J^^-^'^^T^^f  ^"^^^^  '"^^^  State  of VerTonV^d 
St^C  r/'r'^'"^^^  a^dipnhis  oath  of  office/cm 
plaint  paakes  that  Squire  OVnler  Teavis,  Alamanda  Pooe  Bruce 

Scott,  Caîeb  McDowall  Wallftce,  James  Alexander  DqW  jS 
Mc^rortj,  Samuel  SimpsonjGregg,  Dudley  Moore,  iSoTT 
5st  X'  f T'*  Eugène  iackey,  and  ThLas  Bro'nsdon  cl^ 
of  St  Albans  aforesaid,  with  jforoe  and  arms  at  St.  Albans  afore 
T^      ""IV  o°^«.^eteenihdayof  October  in  the  yeïofo^ 

n„t.  fît  "^of'^Tiu'^^î  ^'^°?  *»d  kiown  and  called  bythf 
name  of  the  St.  Albans  bank,  în  ^nd  upOn  one  Cvrus  Newton 
Bishop  he  the  ajd  Bishop  the;e  and  then'l>eing  theSr  o?^S 
vt^nnfn'î  '^^•?'.^^'."^^  P^'^^  «^  «od  and  the  sL  of 

C™  N.^Bishop  m  bodilj  fgar  and  danger  of  his  ife  in  the  bjmk 
building  aforesaid,  there  and  then  felonioîslj  did  putVand  one  thm- 

Ck  S  "ZT^'^  "^'^-  '^'^  ^"'«  ^««<ï  ^J  tie  SY  Alt 
V^r^Z  ^^l^^'^ë  ^  mcorporated  bank,  in  the  said  State  of 
Vermont,  and  the  property  of  the  said  bank,  ind  of  the  denïïiî: 

eld^lrS  -^  ^'S  Jot^r»^'  onethousandbUlscomSy 
ealled  bank  biUs  issued  by  said  bank,  and  of  the  property  of  S 

t^k^""^  Ti,f  *^'  dénomination  and  value  ottty  doUws 
two  thousand  bills  oommonly  called  bank  bills  issued  b/ the  sS 

S  îî^fi^Vn^"^^  'i  4^^^^'  ««d  «f  *»^«  denomiition  and 
hîiv  i?n  "^^     .T  T^'    ^^^  ^^«'«'«d  biUa  oommonly  cXd 

v^«  n?^  TS'*  ^^  ?"  "^^  ^"^^  "^^  ^t  *he  denomina^o^  tod 
va  ue  of  one  doUar  each  ;  ten  thousand  bUls*  commonly  cXd  bïïk 
biUs  issued  by  the  said  bank,  and  the  property  of  saS  bïï  anK 
the  value  and  denommation  of  two  doEaiTeaJh  îZ  tted  bi^ 
c«nly  cafled  bank  bills,  issued  byand  the  priSy Twid  baSk 

dred  pièces  of  silver  money  commody  caUed  half  doUars  each  «f 
îl  dénégation  and  valuJ  of  fifty  oVte  ^aoroiuSïïrmoîïy  ot 
the  Umted  States,  and  the  propertj  of  said  bai,  fr^  the  wion 


the 


mthewBd 


Jaajfingprro^lëïïëFâ^idBrftM-d,  a»in 


and 
»vay 


37  —  ~7  -r-  "-^"««««^g,  M  snon  teuer  à4  afbrésald;.  ^n 
tîiere  felomously  and  violentlv  did  rob,  8teal7takeVSd'c«S 
,  contrary  to  form,  force,  U  effect  of  statut^  of  sid  StateS 

B 


.#- 


p-i'-*  W-ïS^-Ji:  '^ug^rf->'j , 


rjjjteuaA'éJT.tvt 


-  18 

such  caae  made  and  provided,  and  against  the  peace  and  dignity  oT 

Sol  CI    OvfttiO* 

CHELLIS  S.  SAFFORD, 

Tir:  \n        %x  -„  Grand  Juror. 

„  Witneêses,  Cyrus-W.  Bishop  and  others. 

STATB  OP  VERMONT,  )  St.  Albans,  Octobër  the  twentieth,  in  the 
lyankUn  County,  ss.     J  year  of  our  Lord  one  thousand  eight  hon- 
hundred  and  aixty-four.     The  above  complaint  exhibited  to  me, 

LEONARD  GILMAN, 
JmUce  of  the  Peace. 

STATB  OF  VERMONT,  |  To  any  Sheriff  or  Constable  in  the  State, 

l!Von*«n  County,  SS.     j      Greeting  : — 

Bv  the  authority  of  the  State  of  Vennont,  yoi»  are  hereby  com-^*. 
manded  to  apprehend  the  bodies  of  the  said  Samu^  Eugène  liackey, 
Thomas  Bronsdon  Collins,  Squire  Turner  Teavis,  Alamanda  Pope 
Bruce,  Mm-cus  Spurr,  WilUam  H.  ffutehinson,  Charles  Moore 
bwager,  Bennett  H.  Young,  George  Scott,  Caleb  McDowalI 
Wallace,  James  Alexander  Doty,  Joseph  McGrorty,  Samuel  Simp- 
son Gregg,  and  Dudley  Moore,  or  either  of  them,  and  by  whatever 
name  they  or  either  of  them  may  be  known  or  caDed,  and  them  hâve 
before  me  at  the  office  of  the  Sheriff  in  St.  Albans  aforesaid,  there 
and  then  to  answer  unto  the  foregoing  complaint,  and  to  be  further 
dealt  with  according  to  law.  Fail  not,  but  due  service  and  retum 
make.  Dated  at  St.  Albans,  in  the  County  of  Franklm,  this  twen- 
tieth dav  of  October,  in  the  year  of-our  Lord  one  thousand  eisht 
hundred  and  sixty-four. 

LEONARD  GILMAN, 
,  Justice  of  the  Peace, 

STATB  ^P  VERMONT.  j  St.  Albans,  October  twentieth,  in  the  year 
lyansdin  County,  SS.     i  of  our  Lord  one  thousand  eight  hundred 
and  sixty-four.    I  hereby  certify  the  above  to  be  true  copies  of  the 
complaint»  made  to  me,  and  my  account  issued  thereon. 
r-       ,  _,        ,  LEONARD  GILMAN, 

[5  cent  stamp.]  j^^i^e  ofthe  Pe^e. 

STATB  OP  VERMONT,  j  j,  Joseph  H.  Bramerd,  clerk  ofthe  county 
lyankiin  County.  \  Court  of  the  county  of  Franklin,  in  the 
Btate  ot  Vennont,  which  Court  is  a  common  law  Court  of  record,  do 
hereby  certify  that  Léonard  Gilman,  Esq.,  was  on  the  twentieth  day 
of  Uctober,  m  the  year  of  our  Lord  one  thousand  eight  hundred 
and  sixty-four,  and  stdl  is  aJustice  of  the  Peace  in  and  for  the  «àd 
"FP™^  J^^îmï<faly  elècted  and  qualified  to  act  aa  sucï  mag-  " 
jstrate  ;  that  the  signature  to  the  foregoing  certificate,  purporting  t<v 


in  the  State» 


19 

be  the  signature  6f  said  Gilman,  is  the  «enuine  n\m^,.h^r>^  r.e  -^ 
GJman,  and  that  M  faith  and  crédit  fShTto  KT  ^  "ît^ 
officiai  acte  of  Baid  Gihnan.  ^  ^^  8»ven  to  the 

seal  oftiie  ÇountyCourt  oftheCounty  of  F«ini! 

Lfeeal  of  ce.]  at  St.  AlbjM,  in  said  County  of  Praiiklin,  & 
twenty-first  day  of  October,  b  the  year  of  S 
Lord  one  thousand  eight  hundred^and  rixtj^ 

[Stampôcte.]         "^;    JOSEPH  H.  BRAINERD,  C?^;t 

pne  «f  the  Judge»  of  the  Suprem"  CWtTf  tt»  ISS  °î  v*™"°'' 
«jdcluef  J„dJ  „f  *e  Çou4  <S:.?Sle°C^t''î?SrÏÏ 
btate  of  Vermont,  hereby  certifv  that  Jn««nK  rr^L-  j  ,^^ 
«g.«ta^i».ppe„'ded  Jd  S^dWe  Sov^^t:^"' 
the  clert  of  the  said  County  Court  of  thePrmit  „J  u  °"*?"»''?>  » 
«ùd  ;  th.t  I  »m  weU  acqiinted  wM.  MdTS-ll.^'*^'*'*- 

toe  of  the  «ùd  jZph  aBr^^  «d  (te  .iJl  .«  «TrS."«^ 

of  FrutUn  afwS     ""  ^"°'''  ""'°8  '""^  «nd  f«r  the  counlj 

înlMlimonywhereoflhiTehereunlosetmThimd  «K!t  iii, 
u.  the  Coanty  of  IVmkBn  «foreeud,  thie  ZnlSd^^nl'T' 
m  the  ye»  of  «„Lord  one  tho„«id  ei^  ÎŒ  tV4^^'' 

^cerfafy  that  the  fefegoingdocu.     - 

theUnit^rSteteTrirrsStS^s^rth!*^^  ®?*"'*'^^  of 
attatched  to  said  UficlVŒ^^tîfaS:  ^gtuLe?^^ 


UNITED  STATES  OP  AMERICA, 
Stàti  or  YniMORT, 
ExecuHm  DepartmttU. 
icat 


fefeaS^tJîW,»-'  '-tf-^o^   ^&*'llà'*''   *-^  Ji     M-tp- 


,  /  20 

that  said  officoM  respective^  hold  and  exercise  the  offices  which 
they  m  and  by  said  certificates  purport  to  hold  and  exercise  ;  and 
that  the  seal  of  the  8ai4  County  Court  of  the  aforesaid  Counfy 
of  Franklin  thereon,  is  geàuine,  and  that  foll  faith  and  crédit  ought 
to  be  given  to  said  doctafaents  and  certificates. 

In  witibess  whereof  I  hâve  cansed  the  seal  of  said 
ta'  ^   l'a  ®***®  *°  ^  hereto  attached,  and  havo  affixed 

[Seal  of  State  of     nay  signature  hereto,  at  Mon^lier,  this  thirty- 
Vermont.]  first  day  of  Oçtober,  m  the  year  of  our  Lord 

f        one  thousand  eigbt  hundred  and  sixty-four. 
[5  cent  stamp.]  J.  GREGORY  SMITH. 

By  His  Excellency  the  Govemor, 

Attest,  G.  W.  Bailby,  Jun.,  Secretary  of  State. 

Endorsed.- 

/  ;  STATE 

Squieb  Turnke  Tbavis, 
Alamanda  Popb  Broob, 
Maeous  Spure, 
Chablbs  Moobb  Swaqbr, 
William  H.  Hdtchïkson, 
Bbnnbtt  h.  Younq, 
Gborge  Scott,  '^ 

Rled,  9th  Nov.,  1864. 

C.J.C.,  J.StP 


OF  VBRMONT, 
vertuê  '*"' 

Calbb  McDowall  Wallacb, 
Jambs  Albxanbbr  Dott, 
Samuel  Simpson  Gebog^ 
Dudlby  Moorb, 
.Samubl  Eugbnb  Lackbt. 
Thomas  Bronsdon  Colliks. 


\ 


^-!;\ 


(.■■'■) 


TAKBN  HT  TÉB 

ST.  ALBAFS  BANK  CASE. 


FSOvnrcB  or  canada,  > 

District  qf  Mmtrtal.      \ 


POLICE  COURT. 


The  exammataon  of  Cyrm  Newton  Biihop.oî  the  town  of  St 
Alban8,  in  the  State  of  Vermont,  one  of  tfi  United  Stetes  of 
America,  teUer  of  the  St.  Albans  bank,  now  in  the  city  of  Mont- 
réal, taien  on  oatti  this  seventh  day  of  Novembér,  ii  the  year 
of  our  W  one  thousand  eight  hundred  and  sixty-four,  at  the 
Police  Office  in  tiie  Côurt-house.  in  Ihe  ci«y  of  Montra,  in  the  D^ 
tact  of  Montréal  aforesaid,  before  the  undersigned  Judge  of  the 

n-T""  ""^  tl  ^  •'^'  fS^^  ^^^  *^«  ^^^  «>*7  ^f  Montréal,  in  Se 
présence  and  heanng  of  Samuel  Eugène  La;ckey,  Squirfe  Tumer 
W  Ahimanda  Pope  Bruce,  ChiSles  Moore^Sw^er,  Se 

Sî!;  nT?  ^'7^^'  ^^"^  ^«^°^»"  Wallace, laiiefl  Aie? 
ander  Dofy,  Joseph  McGrorty,  Samuel  Simpson  Gwgg,  Dudlev 
Moore,  Thomas  feonsdon  CoÛins.  Marcus  Sp^,  and  f  UkTS 
Hutchinson,  who  are  now  charged  before  me,  upon  complainte  madê 
^deroath  before  me  under  t§e  provisions  ^f  Ae  TreL  betw^n 
Her  B^jestjr  the  Queen  and  the  United  States  of  America,^S 
our  Statutes  m  tha*  behalf  made,  with  having  committed  ^ÏÏn 
tiie  junsdiction  of  the  United  States  of  Amfrica,  the  follS 
cnme  mentaoned  in  the  Treaty  betwèen  Her  Majesty  the  qZ' 
and  the  Umted  States  of  America,  to  wit:-For  that  they'  ' 
the  said  Samuel  Eugène  Lackey,  Squire  Tumer  Teavia    Ali! 

Ty^^T  ?TÏ'ST^^  Mc^rJsw^ger,  GeoTscoU,  B^n^S 
?•  u^'^^*^®^  McDowall  Wallace,  James  Alexandir  Doty 
Joseph  AfcGrorty,  Samuel  Simpson  G^gg,  DudKy  Mooîe  S 
^  ironsdon  CoUins  Mai^us  S^L,  and^William  i.  nSii^n^ 
on  Ae  mneteenth  day  of  October  last  paat,  at  the  towTof 
St.  Albans,  m  the  Stote  of  Vermont,  one  of  the  United  Stetes 
of  Amenca,  bemg  then  and  there  armed  with  certein  offe^ 
sive  weapons  and  instrumente,  to  wit  :  pistols  commonly  known  and 
caUed  revolvers,  loaded  with  powder  «£id  balls  and  clJ^àX  ^d 
ShTirr  ^'^î;^  Bi«ton,feloniously  did  make  Sdt  ^d 
hun  the  swd  Cynw  Newton  Éishop  in  bodily  feay  and  m  dan^r 

'  ^Z!f\7*r^  ^Sf  ?TS"*  ôTseventylhousand^ollars  current 
money  of^the  said  Umted  States  of  America,  and  of  the  value  of 
seventy  thousand  dollars  current  money  afor^said.^f  2  moneya 


'14 


1 1 


ï' 


'■--  j.    ..  .       (.  „ .,. 


22 


-jrr 


and  property  of  the  bank  of<«t.  Albans,  a  bodj  corporate,  consti- 
tuted  and  recbgmzed  by  the  laws  of  the  said  State  of  Vemont, 
and  the  said  Uûited   States  of  America,  from  the  person  and 
custody,  and  possession,  and  against  the  will  of  the  said  Cyrus 
liewton  Bi8hop,-then  and  there  feloniously  and  violently  did  steal, 
take,  and  can-y  àway  againôt  the  form  of  the  Statutes  of  the  said  State 
of  Vermont,  in  ^ch  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  said  State.    The  déponent  Cyras  Ne^iton  Bisl^op 
on  his  oath  i^th— On  the  nineteenth  day  of  Octôber  last  past,  I 
waa  fulfilling  the  duties  of  teller  in  a  banking  institution,  knoira  as 
the  St.  Albans  bank,  m  the  town  of  St.  Albans  aforesaid,  during 
which  dav,  and  between  the  hours  of  three  and  four  of  the  clock, 
in  the  anernoon,  two  persons  whom  I  had  not  known  before,  but 
whom  I  hâve  since  identified  and  whom  I  now,see  in  the  Court,  and 
pomt  out  as  tfo  of  the  prisoners  under  exainination.    Thèse  two 
persons  are  now  known  to  me  by  the  names  of  Thomas  Bronsdon 
Çollîns  and  Marcus  Spurr,  such  bemg  the  nameë  to  which  they 
answer.    At.the  time  the  said  Collins-and  Spurt  entered  the  said 
bank  upon  the  <iaid  mneteenth  day  of  October  last,  I  was  behind 
the  counter  of  said  St.  Albans  bank.    They  immediately  advanced 
towards  the  counter  behind  which  I^^as,  and  each  of  them  poi'nted 
a  revolver  of  a  large  size  to  my  breast,  I  being  then  about  t^e 
feet  distant  from  them.    Seeing  the  revolvers  thus  presented  towards 
me,  I  sprang  from  behind  the  counter  to  the  director's  room  which 
was  near  at  hand,  and  attempted  to  close  the  dwr,  but  the  said 
Collins  and  Spurr  having  followed  me,  forced  the  door  open,  and 
in  doing  so,  I  waa  struck  on  the  forehead,  and  bruised,  leaving  a 
mark  which  was  visible  for  some  days."  After  having  thus  forced 
open  the  door,  one  of  the  prisoners,  the  said  Thomas  Bronsdon  ' 
Collins,  laid  hold  of  me  with  one  hand  by  the  coUar  of  my  coat,  and 
with  the  other  presented  a  revolver  to  my  head,  so  near  thàt  it 
almost  touched  me.    The  other  prisoner,  Marcus  S]^,  aiso  pre- 
sented a  revolver  to  my  head,  at  the  same  moment,  both  of  them 
stating  that  if  I  made  an^furthef  résistance  or  gave  any  fUrther  aJarm, 
they  would  blow  my  brains  out.    I  asked  them  what  the  programme 
was,  and  thev  answ^red  that  they  wer^onfederate  soldiers  detailed 
from  General  Early's  army  to  come  north,  and  to  rob  and  plunder  aa 
our  soldiers  were  domg  in  the  Shcnandoah  valley.  They  then  asked 
me  where  our  gold  was,  to  which  I  answered  we  had  none.     They 
next  asked  me  if  we  had  any  silver,  and  I  told  them  we  had.    At 
this  moment  Lobserved  that  three  other  persons  had  entered  the 
bank  ;  they  were  and  still  are  unknown  to  me.    They  ioined  the 
other  two,  and  seemed  to  know  each  other^  and  acted  m  concert 
"wîtheach  othei*.  TEè TeâdêTof  the  rang  then  proceeded  to  admin- 


23 


Tight  hand,  and  called  upon  me  to  aolemnly  swear-that  I  wdttid  not 
give  alarm  or  fire  upon  ihe  Confederate  Boldiers  ;  that  ia  about 
ail  I  can  remember  of  the  oath  in  question.     There  waa  also  in*  ihe 
director's  room  of  the  said  bank  at  the  time  to  which  I  hâve 
referred  to,  one  Martin  A.  Seymour,  a  clerk  of  the  said  bank  : 
revolvers  were  also  presented  at  him  in  the  director's  room  by 
some  of  the  said  fivé  persons,  whd  were  then  acting  in  concert,  and 
amongst  whom  were  the  said  Collins  and  Spurr.    They  threatened 
him,  and  said  that  if  he  made  any  résistance  and  gave  the  alarm,  they 
would  blow  his  brains  out  also.    Affcer  having  îhus  thteatened  him, 
the  oath  of  which  I  hâve  before  spoken,  was  administered  to  him 
and  to  me.     Both  of  us  were  then  detained  as  prisoners  in  the  said 
room,  two  of  the  said  five  persons  acting  as  guard  over  us,  with  a 
-    revolver  m  each  hand:  I  was  then  orderecHo  show  them  the  place 
m  which  the  silver  was  kept,  and  I  opened  the  safe  in  the  said 
director's  room  where  the  said  silver  was  kept.     So  soon  as  I  did 
this,  one  of  the  five  persons,  pulled  out  three  bags  of  silver  containing 
about  fourteen  hundred  doUars  altogether.    One  of  the  party  then 
remarked  that  they  could  not  carry  the  whole  of  it,  upon  which  they 
tore  open  the  bags,  and  took  away  therefrom  about  four  hundred 
dollars  of  the  silvèr  thev  contained.    Each  of  the  said  five  persons 
took  a  share  of  the  said  flUver.    I  observed  that  four  of  thèse  per^ 
sons  had  satchels  made,  I  beUeve,  of  morocco,  into  which  they  put 
.the  said  silver,  as  also  into  their  pockets.     During  the  time  the 
silver  was  thus  being  taken,  Mr.  Seymour  and  myself  had  to  look 
on,  bemg.  threatened  that  if  we  offered  any  résistance,' we  would 
hâve  our  brains  blown  out.    Afler  having  thus  taken  the  sUver, 
three  of  the  party  went  into  the  banking  room,  in  which  there  was 
a  safe  for  keeping  of  the  bank  bills  of  the  said  bank,  and  for  ihe 
safe  keepmg  of  other  currency.    Said  ColUns  and  Spurr  were  two 
of  the  tllreé  said  persons  ;  the  other  two  remai^ed  guarding  the  said 
Seymour  and  myself  in  the  way  I  hâve  alrcady  stated.    From  this 
.latter  safe,  the  said  last  mentioned  three  persons  took  and  carried 
aw^  a  sum  of  moneyamounting  as  nearly  as  I  can  now  state  to 
between  seventy  and  eighty  thousand  dollars  current  money  of  the 
said  Umtéd  States  of  Amenca.    About  forty  thouaand  dollars  ofthîs 
amount  wascomposed  of  bank  biUs  issued  by  the  said  St.  Albans 
bank,  about  twenty-four  thousand  dollars  in  promissory  notes  of  the 
Mud  United  States,  commoidy  called  and  known  as  greenbacks. 
l-hev  also  took  from  the  said  safe  other  sums  of  money  composed  of 
Jank  hûh  issued  by  différent  banks  in  other  States  of  thTsaid 
Dmted  States,  but  a11  of  which  was  current  money  as  aforesaid.  I 
— -  ~"^  Mvwi  V  ^«  ui  vuuix,  iiweniy*toarrpaoKageB  or  dsiik  oh»,—' 

and  greenbacks  #hich  I  recognize  and  identify  aa  the  property  of 

•the  said  St.  Albans  bank,  and  which  forms  a  part  of  âe  sùm  oÇ. 


■':  m 


s   .4 


^  / 


'il 


ijité 


i  II 


24 

money  I  bave  aJready  stated  waa  stolen  from  the  said  St.  Alban» 

KZ  P  r      ""!  ^'^°^'  S°^°S«*  ^^°°»  ^«^  «»e  said  Thomas 
oSf  ^  Colhn8  and  Marcus  Spurr,  on  the  said  nineteenth  day  of 

each  ^h  a  pap^  band,  e.ghteen  of  the  said  paJkages  are  tied  with 
Wer  bands  which  I  recoçnae^d  identify  Thavig  been  puTon 

the  Baid  McWs  bave  upon  them  the  letters  "  B.  B.,  caah,»~the 
letters  «:B.  R  '  representing  the  name  of  Bradley  Ba^loTU  Se 
jrord  «  cash"  bis  occupation  of  cashier  in  thesaid  bank.  Kn  of 

i^A  n^'l^^J'  ^^^"""^  °^^'  «^«  ^«^ked  in  peSing  by  the 
said  ^  A.  Seymour,  with  the  figurés  "1000"  peJciUedon 

Zh.T^A^rX^^^'^T^''^  each  package  as  containing  one 
Seymour,  the  one  with  the  figures  «  600»  repreSenting  it  to  contoin 
«To5"''^ii'ïi'^'f;'  other  similarly  peïcilled  with  the  fi^ 
100  representing  it  to  contain  one  hundred  dollars.  Tbesflast 
mentioned  packages  in  numbèr  seventeen,  contain  as  per  mark 

Uii»  î  current  money  aforeflaid.     One  of  the  said  seventeen 
packages  by  the  said  pencil  mark  is  wpresented  as  containing  one 

moZ llld       '^  ^r^^^  ^°*««  ^^  *«  United  St^^cr 
«  A  *f      g^enbacks,  and  current  money  aforesaid.    In  addi- 

^v«n  nS'  «^'^^.««^««^««^  packages,!  bave  now  also  before  me 
Beven  other  packages  represented  by  the  figures  in  writing  and 
Cd&Ti^rK^  altogeUier  fiiiy-eight  hundred  and  4ety. 
fiI,^l»"t7nnA^®  ""^  **"  m1?  ^*''  packages  I  also  observe  upon  it  the 
Î^L^SK  "'ff  ^«  ?y  ^^  «^d  Martin  A.  SeymVur,mak! 
mgaltogethertwenty,four  packages  represented  by  the^  respective  ^ 
marks  to  contarn  twentyHone  thousand  four  hundred  and  nine^-five 

a^dTArïnïi  r'"**^''**^',^"*?'^^^^*^^"»^^  St.Albansfànk, 
saia  banfc     The  said  packages  of  bank-bUls,  «reenbacks    are 
now  exhibited  to  me,  by  GuiU^Lne  Lamotbe,  E^.fSXuc? 
m  whose  poye^ion  and  custody  they  hâve  Wn'  pS^ed    Td  I 
was  urformed  that  they  were  taken'with  otiier  sums  of  Sey 
from  the  persons  of  the  prisoners,  but  I  bave  no  personalZZ- 
ledge  of  it    The  amount  of  money  stolen  from  Se  said  hml 
«forîS'f  '^^««^«d  away  by  the  said  five  persons  herebbefow 
gÏZ\^a'  m^  '^''T^  whom  wew  the  saifThomas  Bronsdo^ 
Odhiw  and  Marcus  Spurr,  against  my  will  and  consent,  and  by 
then-  having  put  me  in  bodily  fear  of  mj  life  ;  and  rSie?  sa7 

^^ï^r:*!^  the"îX,^t„ 

\«!»^^      P*P^*  ^l  afaïm,-tiiese  perçons  would  bave,  as  m 
b  event  of  my  domg  so,  tfiey  had  threatened  to  do,  blown  my  bS 


ji'^i 


Lfe»A4ft!^'i3rt«\». 


26  ^  ■ 

**^i'  ?iî"*  1.5»^?  «i^eKeve  tï»at  t^ey  would  hâve  dealt  in  like  manner 
mA  the  «ud  Martin  A.  Seymour,  if  he  had  oflFered  any  résistance 
to  the  swd  robbery     After  the  said  five  persons  had  entered  the 
bank,  ibej  tumed  the  key  of  the  lock  of  thVentomce  door/so  as  t^ 
prevent  ingress  or  egress  ;  and  during  the  time  they  were  engaged 
m  robbmg  the  bank,  a  knock  waa  heard  at  the  di)r,  upon  w4h 
one  of  the  said  party  of  five  opened  it,  and  Samuel  Breck,  of  St. 
Albans  aforesmd,  a  merchant,  entered.    The  moment  he  did  so,  the 
person  ;«^ho  onened  the  door  locked  it:  one  of  the  said  party  then 
took  hold  of  tte  said  Breck  by  the  coUar  of  his  coat  with  onVhS 
presentmg  a  revolver  at  him  with  the  other.    This  person  demanded 
lus  money  and  forced  him  towards  the  connter.    The  said  Breck 
thereuponhanded  to  this  person  a  sum  of  money  whioh  I  understood 
amounted  to  three  hun(fred  and  ninety-three  dollars.    A  note  of 
Je  said  Breck  feU  due  that  day,  for  five  hundred  dollars.  I  heard 
Z^  ."*?  T  *i?°t  i  ^^  «^^^PMy»  *^at  his  money  was  private  pro- 

that.  After  takmg  his  money  he  was  forced  by  the  party.  into  the 
said  director's  room,  and  thel^,  with  Seymour  and  myWf  detained 
asapnsoner.  He  was alsotoldby  the same. persons, 4it if  hemade 
a^yakrm,the;y  would  shoot  him.  Aft«r  th£^occ«;Ze,  aCy  of 
seventeen  or  eighteen  years  of  âge,  a  clerk  in  the  store  ôf  Joiph 
S.  Weeks  a  merchant  of  the  town  of  St.  Albans,  i^lso  laiocked  at 

he  was  thenjalso  hud  hold  of  by  one  of  the  skid  party,  and  foSy 
^t  mto  the  said  director's  room,  and  there,  ffihe  restTf  uj 
K  J^T'  J°»^®^»*«ly  after  the  accompKshment  of  this  rob- 

ZLf  ^t^fî  "^^  *^^  ^"^"^  ^«^  ^«ft  *e  «»id  bank„I  heard 
STo'^P       of  fire  arms  as  if  discharged  opposite  the  said  bank, 
tod  thereupon  three  of  the  said  five  persons  kft  the  said  bank 
amongst  whom  were  the  said  Collins  and  Spurr,  and  in  less  than 

,^^KT*'lf^T^!'  ^^  "°»aini^g  *wo  left  the  bank,  also  walk- 
mg  backwards  ont,  md  with  their  revolvers  pomted  at  me,  and  the 

«ïf^  K  V  P^^'î»' I  stepped  out  on  to  the  foot-walk  in  front  of  the 
sajd  bank,  and  as  I  did,J  saw  the  several  persons  on  horeeba^k 

t"tt^vfive\nZÎ-'î^  '^"'*^^"  I  judgefthey  were  Mw^en 
twenty-fiveandthirtymen;  someof  them  discharged  large^revol- 
verem  ail  directions  at  the  citizens,  as  they  were  ^g  byimon«t 

vas  dressed  in  cmhan's  dress,  and  so  aÉo  were  the  five  person» 
'Who  commtted  the  rebbery  in  the  said  St.  Albans  bank.  They 
^fisenteitnothmg  m  their^ppearance  OTtfresffte^wl^^^W^ 

ti«*  they  were  soldiers,  unless  it  was  their  possession  of  revolvers. 

JJiey  au  seemed  to  be  acting  m  concert  together,  and  rode  off  froia 


Si  I 


• 


M 


l'i  i 


26 


the  said  towB  of  St.  Albans  with  great  speed  upon  horses.    The 

to  the  bme  of  the  eaid  robbery.  And  taj  further  exandnation  is  con- 
imued  till  to-morrow  morning  at  atten  o'clock,  and  I  have^^iened 

CYRUS  NEWTON  BISHOP. 
Swom  and  taken  before  mo  thia  ser-  ) 
enth  day  of  November,  1864.       J 
i  Chas.  J.  Coursol,  J.S.P.  *• 


r 


On  the  eiffhth  day  of  November  in  the  year  of  our  Lj^d  one 
S W  ok!'^  *  ^"T^^  *"**  sixtv-four  the  déponent  Cyrusl^ewton 
BishopaWe  named,l;e-api)eared before  me  theundersiW 
Joseph  CouKol  Esquire,  /udge  of  the  Sessions  of  the  Pélcl&d 
lor  the  City  of  Montréal,  and  being  swom,  depoeeth  andlteiih:-^ 
S^înïS  'T  ^f  "y  «^^a-^ation  yesterda;^,  I  counted  the  money 
Tl^tî  f^t^  *^«°ty-four  packSiges  herernbefore  described,  anJ 
L^i     !"   they  <5ontam  the  amount  of  money  already  mentioned, 
i^ely:  twenty-onethousand four hundred and ninety-five  doUars 
fn  Ko  ifî-S   ^-     «"d  packages  contain  one  thousand  dollars  each 
m  bank-bills  iwued,  by  the  said  St.  AlbaoiJ|N£,  at  St.  AlbanJ 

dïrof'irt^'l^  Baid  packages  c^Pdevenhi^S 
dollars  of  hke  bank-bills;  another  five  hundred  doUars  of  the 
^e  ;  another  four  hundred  and  ninety-five  of  the  ^e  ;  another 

irn^^'f».  o.tiier  packages  contain,  one  nme  hundred,  the 
t^LZ^T"^  n'^i*"  ^  Pronussbiy  notes  of  the  said  United 
States,  commonly  caUed  greenWks,  making  altogether  ijfô  said 

rrl"'*^"^''!  ï""^*^  four  hundred  and  nmety-ûve  doUars 
aSldentirif  1*^^^*^  ^"^""^  »***««•  ^  ^^^'^  ^ecogiS 
folnr*  Lîf    /^'°r«  ^  ^^"^  ^*-  ^"^^  ^^  afore8aid,*and 

Ta  ^®*®:?'l*  day  of  October  hiat,  the  sum  of  twenty-eight 

TL  T™  *^^  *  '"*"®*B  examined  in  this  matter,  and  which 
SmentioS  "  "'^  •^"^'r  •""•  ^^^  *^°««*°d  doUars  of  this 
sLfi^?^,  *"'".''  "'**»«  promissory  notes  of  the  said  United 
Ss  iLueZ  //*"l^  ff^enbacks  ;  the  balance  is  composed  of 
identSv  ti  ^  T^"""*  T""*  ^"^  ^  ^^  «^d  United  Stetes.  I 
m^kSJt^^^T"  ^^  °».0"«/by  the  paper  bands  around  the 
mS^r  •'f'r^  '*  "»  containe(î.  în  addition  to  ail  the  amounte  of 
ZoZrt^T^^'"^  ^^^^"K  ^^  *"•*  described  by  me,  I  now  identify 
^mountin^?  of  money  produced  this  dav  by  the  said  chief  of  poUce, 
SïSin  Si^^^  ••^^  ^^y  ^oflars  in  the  promissonr  notes 
ot^8aid.Bnit©d^t8t«nrAmenOT,  commoay  cà  greenbacks,^ 
as  lorming  a  part  of  the  money  stolen  from  the  said  bank,  on  the 


jwi^c  jJt^  ■».^Ja£ilUt■B^^Esa''  iti  ■".  \  -  c  "ti  V  ' 


lA. 


; ,    .-* 


27,  /  .' 

ÏÏt^C'ïn^^r  ^«*«^f '"*' lî'î  thejp^perty  of  t&e  aaid  bank. 
Thifl  last  8um  of  monpj  I  identi^  by  the  papor  banda  around  the 
packages  m  which  it  u  eontained,  and  also  by  the  figures  in  nén- 
cibng  which  are  to  be  seen  on  the  larger  band  which  surrounded 
au  the  packages  and  name  by  the  figures  «  1000"  which  I  recognize 
'aen%  M  having  been  put  there  bv  myself  ;  I  also  recoïnize 
upon  two  of  the  smaller  paper  bands  which  surrouiid  the  smaller 
packages  the  handwriUng  of  Abner  Forbes,  cashier  of  the  Ver- 
mont  Central  Railroad,  and  upon  one  of  the  said  bands,  the  said 
«^    li^cw'i?  t^«f,^rifcten  in  figures  «371,"  and  in  wrîting  ihe 
word  "Hartland."    I  hâve  a  i)articular  knowledge  of  this  W 
because  it  surrounded  a  sum  of  three  hundred  and  seventy-one 
dolBrs,  which  was  deposited  in,  the  said  bank,  before  the  robbery 
in  question    by  the  said  Forbes;  and  this  band  so  marked  wi 
afterwards  taken  from  the  said  package  of  three  hundred  and 

1      5tTS!;r®  *u" *"'  *?\P°Î  ^y  ™®  '^''«^  »  package  of  one  hun- 

U  dred  doUaw,  the  same  which  I  now  recogniae.  The-second  smaller 

.      m^L^;f}„^^,^àenM7^jt^e  figures  "149,"  and  thp  words 

W   Hartford    wntten  upon  it,  and  which  I  recognize  to  be  the 

W-wrifemg  of  the  said  Aer  Forbes,  and  whicfsurrounded  k 

m  the  said  bank,  préviens  to  the  said  robbeiy.    After  the  sSd  de 

fiurrounds.  Ifurtherwoognizeand  identify  fifteenother  packages  of 
money  now  produced  by  the  said  chief  of  pîlice  aa  forminfa  part  of  a 

t^tntirV^  October  h»st.  The  said  packages  contai»  altogeC 
Il^f\^T^^^  ^'^^  ninety-five  dollars  m  varions  dénomination, 
tZfnwT  Y®  P«>"i88or5r  notes  of  the  said  United  States,  called 
^enbacks,  and  other  the  issues  of  différent  banks  in  thesaid  States* 
Ir^jgmze  tjis  sum  of  money  by  the  paper  bands  in  which  it  is  con- 

mKlf  nf  i^u''*'  «^«^-pacJ^ges  of  money  now  produced  by  the 
Tl  J^^Jo^'ol»^»  contammg  one^  one  thouind  dollars,  the  other, 
mne  hundred  and  eightv-four  doUars,  as  forming  a  part  of  a  larger 

o?oSe"r  iT  ZT  f^'^.^'^^  *^*^ ^»  theldd^eteenK; 

Hono  »    ^  .ÎT?.P*°^T«'  ^^^^^^-^^  ^  pencilling  «le  figii^s 
1000,  'and  the\letter8  ^  S.  B."  représenta  Braley  R^bw 

there,  by  Martin  A.  Seymour,  a  clerk  &  the  said  bank.    The  otLr 

IZÏ^      T1^^.  K  *^®  P*?®""  ^'^^  surroundîng  it.    And  I 
Arther  say  frit,  tbat-otber^aimg^  aoney  hâve  be<m  on  i&e  said^ 


tore  not  wen  nnce  Uie  robberj  ia  question.  AD  the  nion<^  vhich 


n 


b.> 


IT'"' 


X 


.-i-u-.^.  . 


k 


'  28  '  ^  : 

I  hâve  identified  as  having  been  «tolen  from  the  said  bank,  on  the 
said  mneteenth  day  of.  October  la^t,  were  so  stolen  hy  the  said  five 
perBons  to  whoŒ  I  hj^vè  proviouslv  referred,  and  among^.whom  were 
Ihomas  Bronsdou  Collins  and  Marcus  Spurr,  two  of  the  prigoners 
now  under  examîâ^^ion,  and'Mdentified,  and  poujted  by  me. 

The  foregoing  déposition  having  beeo  read/over  in  the  présence 
of  the  person?  so  oharged,  the  déponent  déclares  the  same  to  con- 
tain  the  truth  and  hath  signed 

\  tîYRUS  NEWTON  BISHOP. 

Sworn  and  acfenqwledgcd  before  me 
the  8th.  November 


at  Montréal 
1864. 


■\ 


Chas.  J.  Codrsol,  J.8.P. 


The  foregoihg,  déposition  having  been  made  and  ^ad  in  the 

présence  and  hearing  of  the- prisoners  so  above  oharged,  they  are 

.   asked  if  they  hâve  any  questions  to  put  to  the  déponent.     They 

dei5lare  they  hâve,  and  the  fbllbwing  évidence  is  taken  in  Cross- 

examination  by  Mr.  Kerir  thé  prisoners'  counsel. 

I  do  not  reoollect  that  thé  persons  who  entered  the  bank  in 
the  first  instance  said  anything  to  me  previous  to  my  getting 
m  the  director's  room.    I  was  very  much  fnghtened  when  they» 
pomted  their  revolvers  at  me.    The  first  thing  that  I  reoollect  o# 
now  that  I  aaked  him  was,  "  What  this  meant,"  and  what  the  pro- 
gramme was  ?    He  then  said  that  they  were  Confederate  soldiers 
detailed  from  Early's  anny,  to  cpme  north  to  rob  and  plunder,  the 
same  as  our  soldiers  were  doing  in  the  Shenandoah  valley.     When 
they  took  hold  of  my  person  by  the  coHar,  they  said  that  if  I 
made  any  fiirther  resistaqoe  or  gave  any  akrm,  they  would  blbw 
mj  brains  out.     I  might  hâve  asked  them  to  spare  my  life»  some^ 
tune  dunng  their  presende  there,  but  I  cannot  say  >)sitively 
that  I  did  so.    Fright  and  confusion  conséquent  thereon  tended 
to  confuse  my  thoughta  at  firtt,  stiU  I  recoUect  what  took  place 
at  first  ;  Tam  certaip  that  I  detaUed  ail  the  mcidents  correctly  ; 
I  n%  hâve  overlooked  some  however;  I  cannot  swear  that  I 
did  not  ask  them  to  spare  my  life.    I  uûderstood,  when  they  said 
^t  they  were   Confederate  soldiers,  that  they   were   soldiers 
&om  the  South.     North  and  South  hâve  been  at  war  with  each 
other  for  some  years  past,  and  are  still  so.     ColUns  told  me,  after 
IJe  silver  was  taken,  that  if  their  soldiers  were  not  fired  upon, 
thev  woqld  not  harm  us.    I  don't  remember  the  whole  of  the 
oath  admmistered  to  me  hy  CoUips,  because  I  did  not  stop  to 
Btudy  it  i^t  that  tîme.    I  was  willing  to  d»  anything  at  that  tune 
4o^«av«.Bjy^4ile,    Tlàfr  imtiab^erN.  B.,»  upoir^-pcka™  oT- 
one  thousand  doUars  greenbacks,  were  put  by  me  at  Stanbridge, 


i  v''  ^  ^'-f  i.ï. 


29 

ïï  nnn*^"*  *^*  twenty^eoond  diy  of  October  li»t  ;  tbe  figures 
If  's2.  K  .^"^  *•««  P"t  V  ««e  there.    I  îdentified  said  packages 

band  of  th«  said  parool,  put  them  by  Martin  A.  Seymour.  I  swïar 
p^tively  that  thoee  figurée  are  Martin  A.  Seymour.  I  ide^ 
tified  the  package  of  pine  hundred  doUars,  solely  by  the  pàpet 
banda  enreloping  the  amall  jfMwkagefl,  of  whi(À  it  ii  compose^.  I 
do  not  know  that  there  is  anything  very  pecuHar  about  thoae  banda 
It  w  a  oommon  thing  in  banka  to  hâve  banda  of  that  kind  round 
parcelaoftheirnotea.  Irecognize.thepaokageofnine  hundred  and 
eighty.four  dollars  merely  by  the  band  upon  the  amall  paokaeea  it 

of  wnety-five  dollars  m  greenbacks,  of  différent  denomiWtioM. 
included  in  the  large  package  marked  as  oontàining  two  thousand 
SIX  hundred  and  ninety-five    doUara,   were  loose  when  I  first  , 
aaw  them  at  Stanbndge,  and  the  band  was  placed  round  them 
by  me.     The  package  of  five  one  hundred  dollars  greenbacks. 

m^Stanbndge.      There  were  no  distinguishing  marks  upon  the 
^enbacks  so  put  up  by  me  àt  Stanbridge,  to  show  thS  they 
h^^been  the  property  of  the  St.  Albans  bank,  and  I  identiÔed 
«n!li      T  *ï^^  ''''^.?  ^'^  others-upon  which  there  waa 
TT!  '"*?'•'  î  '*""*"*  identify  the  hun(^ed  doUar  greenbacks 
n  the  package  by  anv  other  niean,  that  he  was  in  among  others 
that  were  marked.     Vtjen  I  came  out  of  the  bank,  as  mfntioned 
m  my  examination-in-chief,  the   prties  on  horseba<5k,  who  had 
&ed  pwtob  as  I  hâve  mentione([,  were  at  a  distance  of  about 
*ae  quarter  of  a  mile  from  me.      I  cannot  teU  how  many  people 
there  were  pass.ng  the  said  band  of  men  at  the   time  I  went 
on  the  side-walk      I  cannot  tell  how  many  women  and  children  I 
aaw  near  them.     I  saw  half-a^ozen  near  ^.    I  cannot  say  that 
1  sawthemfiring  when  I  came  on  the  foot-walk,  but  they  wére 
.finng  when  I  saw  them  in  front  of  the  bank.   I.sa^  them  provipus 
'«aving  the  bank,  through  the  window.     I  did  not  see  atty  person 

we're21.%  '^-f  ^"^ï  ^^  *^%P*^y-     I  ««"  swear^afZ 
were  fanng  at  the  citizens,  because  I  aaV  them  pointing  their  pistofs 

&„î?a^®  *'**^-*'^'  *°^,'*''  ^^  ^^"^  *^e^  discharge  their  pistols. 

^Zit  f '  ^*^ï  *°^  ?^y  «"^"g  ^'^^^    I  «»^  *»^«  °>«^  on  horseback 
wf  w     ?f^^'  V^'^oxa  to  the  two  men  leaving  the  bànk.    The 

31  1    A'     t^^  *^**  *^«  ^"^  «f  St.  Albans  extends  in  a 
^g^  4pcteoa..m«e  ihan  one  qnarter  of  a  noie^trom  the  Sf?— 
folnnS"?^*    i^^^"^  *ï^  dirBeU>T\  room  whe^  the  shots  were 
SSo  tt;"tree?''^'  '  '"^  '  ""''  '''  ^^'^S^  *^«  »>"^S 


V 


T  ( 


4. 


lÀ  t- 


r  i. 


!  !1; 


;         .^  80      *• 

the  bauk,  the  bank  was  m  possesaion  of  notes  of  the  «me  kind 
and  denommation  as  those  referred  to  in  my  croZxSatiT 
and  notes  of  those  descriptions  were  taken  away  C&nSk  by 
the  parties  I  hâve  spoken  of.  ^  ^^  ^ 

déclara  that  they  had  no  forther  question  to  put  to  the  deporn? 
and  this  déposition  havnig  been  read  in  Ae  présence  of  th^s^d 
pnsoners  the  déponent  déclares  it  contains  the  truth  apd  hat?ri|ÏÏ 

CYRUS  NEWTON  BISHol^ 
Swom,  taken,  and  acknowledged  ) 

'  ontheday,nronth,andyearhere-L 
inbefore  menlioned  before  me.    ) 

Chas.  J.  Coursol,  J.S.P. 


<i. 


JgSX^ji-t.i^  r 


81 


PROVINCE  OF  CANADA, 
Dittrict  0/ Montréal. 


JAà 


POLICE  court; 


Peace  tien  on  oath^is  tUrf^v  .? V   ^v^""^'  ?'"*^«®  «^  *b^ 
Lord  one  thonsand  elïL  hmid^^/L^  ''•'î^r"  *^*  ^^^ 
Office  in  thé  Coort  hX  S^nlffS  î?^!^.  **  ^^  ^'«««^ 
of  Montréal  afoi^d  Kôi^tr^  ,S  ^^  ^T?®?^'  i»  «»e  District 

of  the  Peace  in^  for  tirs^a  ci  W  ^^^^  '^?'  ^^««^0°» 

and  hearing  of  sLnel  Fn^l  t^  w  ^**S*"?^  «  «le  présence' 
Ahmanda  1>(1  Se  &««  M^'^'a®^"''*  îï^'**'  ^eavis, 
Bennett  H.  •SLf^.Sib  M^nLÎ^?^S  i^^^î'  ^"°''««  Scott 
Doty,  Joseph  iSfrortv  sS^*    ^*^'^'®'  '^'^^  Alexander 

H^tchm8on,  who  are  now  eh^r^^hJ^^'  William    H. 

nmde  unde^  oath  befow  le^§!:  tt  ?  "^^'  "^^  f««ÎE'ai°t« 
between  Her  Maieatv  th!  /ï^       the  provisions  of  the  Trèaty  ' 

Scott,  Bennett  H^^X  S  Slï'"'  ¥^^  Swa«er,  George 
ander'  Dotj,  J<»eph Xorort   ^'^^T'ï  WaUace,laiies.Alex- 

t^î^tè  5™- ï^-^ii..r:? 

Sowles,  feloiSuslj  did  mJke  ^«ÏÏKSÎ  '  "!*¥  T°  <»«  ^^^^ 
Sowles,  in  bodily  feM^^aSl^  T  "^"lV*^.i  ^°*'  **»«  «^^  Albert 

8and  dollars  cimentZ^lî^TJ'  "^^VÎ^  *®  «"«««t  of  nine  thou- 
and  of  ™vZof^:^tJo,^r?r^^  States  of  Americï, 
Baid  ;  also  certain  ZS.  Z^^  ^?^'^  «"^«*  ««ney  afore- 
Tr^aiuiy  STtTt  L^f^  tr*'  'f^  ^^^  States 
sandsi/hundredandMyTCLZL^™  °^  twen^yn^ne  thou- 
promisoiy  notes  of  Ae  tinitedTtaïïr!îV°^"^^  «foresaid;  cerbûn 


cent,  int;;rMt,  caUod  five  w4^^5  r  ^^l^^^  "^'^"g  fi^^f«>* 
and  yï^of  foSîeen  LCn?^ni^**°?"'  *^  *'»«  »^^ 
notes  of  the  said  Uni^lZ^V^TriLrci^^^^^^  '^^, 


ri 
K 


K 


§*^    V^ï 


ï^^- 


32 

compound  interest  notes,  to  the  amount  and  value  of  one  thouaand 
dollars  current  money  aforesaid,  of  the  moneys  and  property  of  the 
.First  National  Bank  of-St.  Albans,  at  St.  Albanï  aforesaid.-a 
body  corporate,  constituted  and  rècognized  by  the  laws  of  the  said 
Umted  States  of  America,— from  the  person,  custody,  and  posses- 
ion,  and  against  the  wiU,  of  the  said  Albert  Sowles,  and  m  his 
présence,  then  and  there,  feloniously  and  violently,  did  steal,  take 
aad  carry  away,  against  the  form  of  the  Statutea  of  the  said  State 
ot  Vermont,  m  such  case  made  and  provided,  and  against  the 
peace  and  dignity  of  the  said  State. 

This  déponent,  JBienri/  NeUon  Whitman,  on  his  oath  saith  ~I 
recogmze  among  the  prisoners,  now  in  Court,  the  foUowing,  naminc 
themselves  respectively,— Samuel  Eugène  Lackey,  Marcus  Spurr, 
James  Alexander  Doty,  Joseph  McGrorty,  Alamanda  Pope  Bniee 
Mid  Xhomas  Brondson  Collins.    I  firat  saw  four  of  them,  riz.:  Samuel 
hugene  Lackey,  Marcus  Spurr,  Ahunanda  Pope  Bruce,  and  Thomas 
Brownston  Collins,  at  Stanbridge,  aforesaid,  during  the  night  ofc^ 
the  lyth,  and,  to  the  best  of  my  knowledge,  about  one  o'olock  on 
the  moming  of  the  20th  day  of  October  laflt  past.    Two  of  them 
namely,  Bruce  and  Spurr,  were  in  bed,  at  a  tavem  kept  in  the 
vJlage  of  Stanbndge,  by  one  William  Elder  ;  and  I  made  prisoners 
ot  them,  and  put  kéepers  over  them.    The  prisoner,  CoUins,  came 
mto  Henry  Bacon's  hôtel,  in  Stanbridge  East,  between  twelve 
and  one  o  olock  in  that  night.    I  was  in  the  hôtel  at  the  time,  and 
ordered  hm  mto  custody,  and  phwed  keepers  over  him  and  the 
pnsoner,  Samuel  Eugène  Lackey,  was  arrested  on  the  side-walk 
near  Mr.  Baoon's  hôtel.    He  was  also  arrested  by  my  orders,  m 
my  présence,  and  brought  into  Mr.  Bacon's  hôtel.    They  were  aU 
dressed  m  common  civiliana'  dress.  The  two  others,  namely,  James 
Alexander  Doty  and  Joseph  McGrorty,  were  arrested  by  me  the 
,  foUowing  mght,  that  is  to  say  about  two  o'clock  in  the  moming,  of 
the  2l8t  day  of  October  last.    They  were  then  sleeping  in  a  bwn, 
in  the  first  Conoesaion  of  Dunham,  in  the  same  district  ;  they  were 
also  dressed  in  civilians'  clothes.   Thèse  two  last  men  were  armed. 
eaoh  havmg  a  Coït  revolver.    The  first  two,  namely,  Bruce  and 
Spurr,  were  also  armed  when  arrested,  having  each  two  revolvers. 
Ihe  remammg  two  prisoners,  before  named,  were  not  armed. 
rhese  persons  so  arrested  had  their  clothes  spotted  with  mud 
and  some  of  them  having  even  mud  on  their  faces,  having  the 
apiwaranoe  of  persons  who  had  travelled  rapidly  over  muddy 
roads.    I  adopted  the  précaution  of  searching  the  whole  of  thèse 
men  when  they  were  arrested,  teUmg  them  they  were  arrested  for 
robbmg  the  St.  Albans  bank.    I  found  money  opon  aU  of  them  ; 
-te  poë^wlpran  Med.    Ûpon  the  artest  of  the  said  Bruce  and 
Spurr,  at  Elder'B  tavem,  the  foUowing  packages  pf  money,  to  wit,  one 


.•V 


^ 


I     ! 


iiif;k,-, 


X 


ath  saitih: — ^I 


88         , 

being  the  initiais  of  Cyrus  NeXn  tIS?  ^.i^*"*^'  "Cjf.B.." 

the  dénomination  of  twer^a  k!.  •       ,    °"^  °^  *^«  same  bank  of 
Mr.  Biahop  ;  ZZZr'^S^J?\^:  ^'^  «•«  '^^^  ol 

wise  countedt^d  bea£X  iSof  C^P^Î*^*^  ^""«^'i^- 
package  of  the  samerteMle'aLSofoL^    B«Aoi,  and  anofTr 
package  of  bank  biUs  ofTheTtlïbt^''LÎm^°"^  '  '^°'>*t«r 
thousand  doUare,  and  initided  oif^î^n  ^'  *^v*®  «^^''^o*  of  one 
er  package  of  bU  hTTthe  ^71^^'',^^^ ''^''^  '  ^^o^' 
thousand  doUars,  marked  on  the  co^L  th^I  *^  thr  amount  of  one  . 
package  of  biUs  of  the  same  baST?h?!  same  manner;  another 
dollars,  likewise  initialed  on  the  b^k^-^oS*""*  f  ""^  ^^«'^«^d 
the  same  bank,  of  the  denonSatWftftt^  î  P*ï^*«*  ^^  "^^  of 
thousand  dollars,  likewise  mSZlrî^  '  ^  *?®  '^^'^*  of  one 
âge,  conteining  one  thous^d  doC^f  S' V^.?  "^''^'^  P^^^- 
eleven  other  packages  of  bii  of  SS 1       k»  ''Î  *^®  ^°^e  bLk  ; 
one  thousan/ doll^,  ,md  mLled  i^  T'  ^*^'  **°^  <'««*'^g 
also  a  ^ckage  of  bilJs  of  tW  sSme  bSllTtJ'*^  '^  *^«  ^"^^'^ 
hundred  dollars  ;  another  Dacka^  .fT^'  ^  ^^  ^"^"^^  of  five 
four  hundred  doÛars ,'  tootfêr  oî^thf  *'  T'^l  ^  ^^  ^omt  of 
hundred  andninety-fiVe 7^?^- an^fhT?..*"  ^^'  *"^°«'^*  «f  four 
of  one  hundred  dofiars     MS^'oHiï    ""^u^^  *^«'  ^  *he  amount 
them,  and  others  m  and^.  p-^    P*°^*6^«  ^««^  «o  bands  on 
a«dmarkedthem,ï!^gt^^^^  on  them° 

United  States  Treaaury  notT  onm^n  i'  *°1,^«'^  a  package  of 
tenthsTreaaurynotesTïït'  ^<*™°»only  caUed  seven  and  tffee- 
dreddoUaTîhet^d^^'ee^f^î^^'^^f.thousan^ 

bed  When  I  entered  tS  b^lf Hk'  "^  '  ^^?  8tated,lrere  in 
m  the  same  bed.  Thesn  ™SL  !2^°'  ^^^  ^^^  aleeping  Wether 
ont  of  the  pocfcJîf'tSerctr^dT;!^'^^^ 
tpok  loose  under  their  pUJo^  fiîTn^T^^'  ^?  '^"'^  packages  I 
fonnd  in  fteir  pockete  a T;  dX^  ''  î*"  ^®«^  '*  ^"^  I  abo 
l^e-e  packages  TbaiAbk  and  t^»,,"'  ^r"*^  ^^^  dollanr. 


W» 


«ViTi: ....     *  "«arcûea  tbem i» 

of  bank-bills  of  American  banks  •  on«  Z^*1"  "•  ""'''  *'  *^°  Packages 


..àiiiûiiîiiiiaÈ  .(ii-M&... 


34 


i  i 


k 


(  î 


■  M' 


Ur  ':f 


upon  the-^isoners,  James  Alexander  Doty  and  Joseph  McGrorty, 
ùpon  my  arrestingthem  in  the  bam,  packages  of  bank-bills,  one  of 
which  packages  now  produced  by  me,  contairis  five  thousand  two 
hmidred  and  sixty  dollars  ;  another  package  of  bank-bills  and 
greenbacks,  marked  as  containing  three  thousand  and  sixty-five 
dollars;   another  package  of  bank-bills,  marked  as  containing 
seventeen  hundred  dollars  ;  one  package  principally  greenbacks, 
and  a  few  bank-bills,  marked  as  containing  fourteen  hundred  dollars  ; 
one  St.  Albans  bank  bill  for  twenty  dollars  ;  and  twelve  hundred 
dollars  of  United  States  five-twenty  bonds,  which  I  now  produce  and 
hand  over  to  the  said  chief  of  pohce,  by  order  of  the  judge  of,  ses- 
sions.   I  found  thèse  packages  of  money  and  United  States  notes 
in  the  pockets  of  the  said  Doty  and  McGrorty,  when  I  so  searched 
them  in  the  said  bam. 

And  my  further  examination  is  continued  till  to-morrow  mommg 
at  ten  o'clock,  and  I  hâve  signed 

H.  ^.  WHITMAN. 
Swom  and  taken  before  m»  this 


3rd  day  of  November,  1864. 

Chas.  J.  Codrsol,  J.S.P. 

And  on  this  day  the  fiflh  day  of  November  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  sixty-four,  the  above  dépon- 
ent ffenry  NeUon  WhUman  appears  before  the  undersigned  Charles 
^  Joseph  Coursol,  Esquire,  Judge  of  the  Sessions  of  tije  Peace  m  and 
for  the  city  of  Montréal  and  havmg  been  sworn  m  the  présence  of 
the  above  named  prisoners  deposeth  and  sùth  : 

Upon  the  arrest  of  the  prisoners,  Bruce  and  Spurr,  at  William 
Elder's  tavem,  I  found  in  their  possession  four  revolvers,  whicl» 
I  suppose  to  be  of  Colt's  manufactoiy,  each  revolver  being 
covered  with  leather  belts  or  hol&ters.    Thèse  revolvers  I  ;»oW 
produce,  and  they  are  in  the  same  state  now  as  when  I  found 
them  in  the  possession  of  the  said  Bruce  and  Spurr.    TheySiad 
them  under  their  pillows  in  the  bed  they  were  sleepmg  in. 
Each  revolver  had  six  chambers,  some  of  them  loaded  flnd  cap- 
ped,  and  a  few  of  them  having  the  appearance  of  having  been^ 
discharged.    Thèse  revolvers  I  now  mark  with  my  initiais  on  the 
belta  for  the  purpose  of  identification,  and  now  hand  them  ovôr  to 
the  chief  of  police,  by  order  of  the  judge  of  session.    I  found  no 
arms  upon  the  prisoner  CoUins,  nor  upon  the  prisoner  Laokey.    I 
found,  upon  the  arrest  of  the  prisoners,  Doty  and  McGrorty,  in  thp 
bam,  and  under  their  dothkg  thrown  upon  the  hay,  two  revolverê 
01  a  auQuar  aescnotuA^ciMittuned  eadb  in  ft  te&ther^^bdt,  and  I  now^ 


produce  them  m  the  same  state  as  I  found  them,  and  I  now  mark 
them  m  the  same  manner  for  identification,  and  give  them  to  th« 


i,  .»!.  .     1 


35 

aaid  chief  of  police,  bythe  same  ordÀi.     tu 

loaded,  and  alSost  aU  L  chaS!«  «2^'    ^T  ^^oJ^ers  are  also 

and  the  distance  is  about  twenfrJ-five^SpL^f  S  ^  *  ^«c*  «>îâ, 
where  Doty  and  McGi^rtv  C  W,tïï^ ï,'  sf^îr'"  *^?  P^««« 
about  the  same  distance;  Eut  the  C  whet  ttf  '^'  *^^^  ^ 
18  about  a  distance  of  eiffhtv  XJi»  f       T  ^^^  ^®^®  secreted, 

Stanbndge  tô  Bull'^jt'  it^k^estn^^^i'^'^^,^"' 
aa  well  as  of  aU  the  money  I  fou^  m^l  "^^  *^®  revolvers, 

prisoners,  and  kept  them  Sfelv  ,^H1?      a  P^««®««'on  of  t|ie  said 

Court.  WnlLttedt'tïï/^eTSt*''"  '4  «^ 
asked  me  whether  I  was  a  British  officer  Tn//""'  ^°^  °^  *^«n» 
was  a  magistrate,  and  that  I  a^ÏÏ  i.  /  ^^.^""^  *ha*  I 
Albaj.3  baâcs.  One  of  them,  wh^I  liut?Jr  t^^^  *^«  «*' 
awConfederatesoldier8,andSe,î^i!!i,  ^^  J"^''^'  «*id,  we 
St.  Albans,  wasin  retalilSri  Srth«  Zf ^J^^  ^  ^*P*^d  ^om 
bj  Sheridan,inthe  ShSTdS  X  IfZ^ /«^^î^  P 
,    sation  took  nlaoe  I  b«il  tuV^  vauey.    At  the  tune  this  Cohver- 

0    them.  The4rJkefmtt:"teTerprj^^^^ 

to  inform  him  that  they  were^canS      a^:  ^.'  ^^aj^at Montra, 

there  was  no  télégraphie  communLHnf  J*    \r°™ed  them  tha. 
would  aa  soon  g^VaZTbvtS  ™'°i'^*.P^'^«î*bat^        ' 
wrote  a  letter,  a^dressed^rî  beOto'c'r  n  "'"^nJ^^  '^'^ 
me  that  the  said  Gay  wm  a  Pnrif  j     i     ^*  ^-  ^^*/-    They  told 
bank  bills,  sMen  7bJ  me  S  wt'î*?  ?«'"î  ?*  T ^*^^-    ^e 
they  bbli  acWledgJd  to  W  ï' t  ^  ^'T^/'  *^«^'-  Possession, 
Albans.    InconveX%ithrwM?li^^ 
they  also  told  me  howley  «ot  a^ay  fi^™  l{  IT  "^  ^  ^^^ëe. 
both  together  in  the  same^r^m  S^^,®J^;/'?^-   They  wfre 
aaid  they  had  taken  hoi^wfc.         1  **  ^**«'  »  tavem.    They 

.  Albans /had  pSI^bLSkTon^rdlaf  ^^1?  >'  *^«--  sY 
and  ttat  they^HÏe  off  to  CanSa  L  ,t^  ^'^  ^°  «^<^<^'««  on  ; 
badly  chafei  for  nding  sTC^  tL?  l^*'??^  "^^  «*^^es.  were 
they  had  abandoned  ^Iho^ei'iJ^^^T  *'?/^*  *^  C^, 
mornin^foUowingthôirarrSfô,Lfî*®'^*^°Î^P^«it.  The 
md,  wlthout  saddles  oTSes  î^lïîT^°^^'«^«»o°>aS 
Bhortly afterwards  cUiimed  W  Zv  nl*"^*^  ^*">'  »°d  they  were 
This  is  ,bo«t  au  Bru^^d  tt^^Jf "i?l^^^^^^^  <>f  «t.  LlJ^, 
threats,  nor  heW  out  any  inCm^l  wJ  î  and  I  made  use  of  no 
mente  ;  they  w^re  freely  JSd  yoSÊ  *T  *°  ïï*^«  «"^^  state- 

anaMcC^^^ade  to  m7STs^^.,^7S^ 


Iîrm»|ii» 


\,  -36  ■ 

the  bimk  bilb  and  securiaes  taken  from  aem.imd  npoduced  h-,  m» 
'"fc"  %  Court,  h«l  bee»  taken  by,  them  Sl^  a  X^ 

^ey  had  shot  Ox  or  three  pereons  in  St.  AlbanTnLeîv  P  w 
Huntajgdon  and  We  Morrison,  and  that  it  was^t  «^Ziî^Vi?: 

'^  \  H-  N.  WHITMAN. 

Swom  before  me  at  Mèntreal,  this  î 

6th  Kovember,  1!^64.  j       ' 

^8.  J.  COUBSOL,  J.S.P. 

s4A!ierwr«i:d™Mr'i°"Li™'*?  s.f^'M" 

mei do^  i,  tie 8t»ete.  T ^S  CaL  L^' *? ■•  f 

ifonned  by  the  parties  who  gave  nto 


had  ail 


lev  wo« 


87 
the  information  that  a»  bftiMl  ftf  «.^     v    ,    , 

aecunfaea,  and,  the  pS  of  st  AlSnîT      r**^  ^"^  notes  and 
The  said  men  did  nJt  £h  1  tt^r&ïlTr  ^  J^*  ^^  *he»- 
monpj  fiom  the  banks  haâ  Sedïed  tiST"  ''^^  ^  ^^J^*»*  t^e 
:       Boldiew.    IdidnottWnki*ourKo^eywt'?7î'ï^^«^«™*« 
«omg  tosnperintend  thebuabeM  h^fî^r  •^^î®*^™^edm)on 
be  aome  iiïwtion  of  X  KTf;  ïî     ^^i®**  *^*  «»ere  mffl 
About  flix  men  were  ^S  mrw£i.1  T^*^'  feja^  m  p3 
.    Todm  in  Elder'8  tavern     aw^  i^*"?^  ^T *  ««<1  Ws 
to  asaist  me.    The  moneyww  S^n^'î^"^  ^-^  caDe/npon 
'^me  of  it  I  took  ont  o/Zàr^î£Z^T  V^""  ^'^'^' 
from  under  their  pUlowa,  bvTnSf  «f  *i.        **"*  ^*''®'  '^«a  taken 
niy  présence,  andCS  '?eî  S^e  Lmt* t?  "^  ^artindale,  iî 
over  to  the  Me  and  had  it  c^nnf^S  ^jamediately.    I  took  it  riiht 
.  I  helped  hiiSXso,  and  one  Mr  Bi^^  ftf^t'  ^^  ^'  ^■ 
h«û.    It  was  then  wlJed  up  a^  sffe  fW^*™^'  *^«P  ^^^P^^ 
Jt  was  a  Kttïè  after  two  o'cC  în  5i  •  ""  P'^sence.    I  a^ 

Bruce  and  Spnrr  iew  WZ  f  l'^Tï^.^^*^  the  nrisS; 
Jad  elapsed  Ween  thSTamit  JLd  fï'*  *^-  ^^  ^"^  hoS 
Mr.  BIjnn  accompanied  mT^  ttf  lîl*^^*^»  °^  «»«  ««oney. 

pnsoners from  whom kwwïïln  r""*^  '"  J?»«  P^sence  of  thé 
who  assisted  me  h^Sda^n«t  ^^"^5  **^  ^^  ™«  of  KniS 

and  to  d  Mr.  Krfight  to  takTthfim  n»  SlÇî^"®"  »*  ^Ider's 
wj«  taJcen  in  ^3^  hotet^f^f^J¥  others.  Collins 
after  lus  «rrest  I  went  to  aiest  «Zî ^  u^."*  »  '»«»•  Soon 
away  I  went  back  to  the'^SX^ Tlî^»*  «J^Jej  had  gone 
keepers,  and  as  I  entered  CZm^/n^  l^^  ^"^  '^^der 
mg  the  money  ont  of  their  wjETJTit  "®  ^  eenanenced  puH- 

toldthemtf  stop  for  Im,^^^^Ww^*.^"I~"*^^  I 

poney  muflt  be  kept  by  S.    1^^  7^?  ït  is^taken,  and  this 

m  person,  and  got  whij  i^pDOsedt\?°fr  î  ^«  ««»^h  myself 
aie  next  day  âree  one  ffiff  ddltl?i^'*?^l^'^*f<>««d  on 
handed  orft  to  me,  statingTlîl  L5f  *"""!!'•  '^^''^  ^o»  CoUins, 
got fromCoUins ii biC^d IwJnWW  J.""*" ^ P"^»*« ^d«  î 
««hundredand  nine^-fiwdXi  H^®"ÎT*oftwothon8and 
had  a  satchel  about  S&deÏT*  Ww  î  '  5f**  «*^  <^^^^ 
^en  m  takin«  aie  moneVoTof 'coS  JL^^^T*  «°*  *^  the 
heheve,  oom^dn^d  that  Cne v  S  k    ^^**''  *»«'  (Collins,)  I 


"-'  *^  '-'^^  -*  for  M,.  Knigh.  .0  .»„  ^ 


\i 


?l 


'  'M 

ffi 


ir 


* 


\ii 


il]  ii'l 


80  -  i  1     - 

aasist  me  to  arrest  those  men,  He,  and  four  or  five  others,  went 
^  with  me  up  to  the  tloor  where  they  were  sleeping.  Knight  went 
to  knock  at  the  door»  and  I  ordered  him  away  from  the  doorT 
,  Another  persop,  I  think  Martindàle,  .burst  the  door,  and  hé^ 
Martindale,  Cross,  and  I  n^ent  in  first,  and  the  rest  that  -were  witii 
me  foUowed,  and  I  told  the  prisoners  that  they  were  arrestèd  for 
robbing  the  St.  Albans  banks  ;  Martindale  laid  his  hand  npon  thera 
first,  and  thén  Knight  jomped  upon  the  bed  and  put  handcufb 
oh  them.  I  took  some  money  in  a  roll  firom  CoUiiù'  satchel. 
The  two  paokages  of  notes  now  produced,  marked  as  containing 
one,  two  wousand  àx  hnndrèd  and  ninety-five  dollars,  was  taken 
firom  Gollins'  pocket  ;  and  the  other,  marked  as  containing  nineteen 
hundred  and  eighty-four  dollam,  was  taken  from-tjackey's  pockets. 
The  money  I  took  from  CoUms'  satchel  is  mcluded  in  the  package 
marked  as  contuning  two  thousand  six  hundred  and  ninety-five 
dollars.  The  reason  that  the  prisoners  assigned  for  not  ^ving  me 
their  names  was  that  they  ^ere  of  respectable  parentage,  and  that 
they  did  not  wish  their  luunes  to  go  back  to  their  fiiends  as  having 
connection  in  this  raid,  and  for  the  reason  that'it  would  give  their 
friends  unpleasant  feelings.  I  swear  that  I  hâte  produced- ail  the 
moneys  and  other  effects  either  taken  by  me  firom  the  prisoners,  or 
delivered  to  me  by  other  people  as  having  been  taken  from  the 
prisoners,  with  the  exception  of  a  satchel.  The  prisoners'  connsel 
déclares  having  no  furuier  questions;  and  this  déposition  having 
been  read  in  the  présence  and  hearing  of  the  said  prisoners,  the 
déponent  déclares  it  eontains  the  truth,  and  hath  signed 

*  (Signed)  H.  N.  WHITMAN. 

Swom,  taken,  and  acknowledged^    ^^ 

before  me,  on  the  day,  month,  I    ' 

and  year,  and  at  the  place,  hère-  [ 

inbefore  mentioned.  J  * 

(Signed)        Chas.  J.  Coursol,  J.S.P. 


^^i^t^hîit^(K^^iîÈt2!^àivj^~^^^  '-Xi  ^rA  \£,-i4-  'a 


''fc^Miij.-i*'tft7i*%ti.  -S^ 


.i  *?L\*'*>>, 


^> 


89 


POLICE  COURT. 


PROVlirOÏ  OP  CANADA, 
^^Didtidt  nf  Montréal. 

.^Çination  of  J&An  O'Leary.oî  the  ciiy  of  Montréal,  in  the 
l^tn^of  Montréal,  détective,  police  officer,taken  on  oath  this  7th 
d^  "oT  November,  in  the  year  of  onr"  Lord  one  thousaiid  eight 
Mi^d  «md  sixty.four,  at  the  PoUce  OiSice  in  the  Conrt-houfley  in 
the  ei\x  of  Montréal,  in  the  District  of  Montréal  aforesaîd,  before 
the  undersigned  Judge  of  the  Sessions  of  the  Peace  in  and  for  the 
TOid  City  of  Montréal,  in  thp  présence  and  hearing  of  Samuel 
Eugène  Lackey,  Sq(uire  Tumer  Teavis,  Alamanda  Pope  Bruce, 
ChMips  Moore  Swager,  George  Scott,  Bennett  H.  Young,'  Caleb 
McDowïm  WaUace,  James  Alexander  Doty,  Joseph  McGiorty, 
^uel  Sunpson  Gregg  Budley  Moore,  Thomae  Brçnsdon  Colliiîs 
Marcus  Spurr,  and  William  H.  Hutchinson,  who  «re  now  charged 
betore  me,  upon  complaints  made  under  oath  beforè  me  under  the 
provisions  of  the^Treaty  between  Her  Majesty  the  Queen,  and  the 
Umted  btates  of  America,  and  our  Statutes.in  that  behalf  made, 
^th  having  committed  within  the  jurisdiction  of  the  United  States 
^  Amenca,  the  following  crime  mentioned  inVthe  Treaty  between 
Her  Majes^  the  Queen,  and  the  United  States  of  America,  towit:— 
^or  that  they,  the  said  Samuel  Eugène  Lackey,  Squire  Tumer 
Teaj^s,  Alamanda  Pope  Bruce,  Charles  Moore  Swager,  George 
Scott,  Bennett  H.  Young,  Caleb  McDowall  Wallace,  lames  Alel 
ander  Doty,  Joseph  MeGrorty,  Samuel  Sitapson  Gregg,  Dudley 
Moore,  Thomas  Bi-onsdon  Colhns,  Marcus  Spurr,  and  Wilham  H. 
Hutchinson,  on  the  nineteenth  day  of  October  last  past,  at  the  toWn 
ot  St.  Albans,m  the  State  of  Vermont,  one  of  the  United  States  of 
Amenca,  bemgthen  and  there  armed  with  certain  offensive  weaponà 
ana  mstniments,  to  wit;  pistols  commonly  known  and  caUed  revol- 
vers, loaded  with  rowder  and  balls  and  capped,  in  and  upon  one 
Cyras  Newton  Bishop,  feloniously  did  make  an  amult  and  tiim  the 
said  Cyrus-Newton  Bishop  in  bodily  fear  and  in  danger  of  his  life, 
t^n  and  there  feloniously  did  put,  and  a  certain  suni  of  money,  tcî. 
wit  :  to  the  amount  of  seventy  thousand  doUars  current  moneV  of 
the  said  Umted  States  of  America,  and  of  the  value  of  seventy 
toousand  dollars  current  money  aforeeaid,  of  the  moneys  and  pri 

^J  '  }l  ^^  f  ^*-  i^^*°«'  ?  ^o^y  corporate,  constituted  and 
recogm^d  by  the  aws  of  the  said  State  of  Vermont,  and  the  said 
umted  States  of  Amenca,  from  the  person  and  custody,  and  pos- 
scMion,  and  à^inst  the  wiU  of  the  said  Gyrus  Net«ton  Mop,  then 
and  there  feloniously  and  violenftly  did  steàl,  take,  and  carry  awa 
^pmat  %  form  of  the  Statutes^f  the  said  State  of  Vermont^m— ' 


case  made  and  provided,  and  against  the  peace  and  dignity  of  the 
said  State.    The  déponent,  John  (fLeary,  upon  his  oath  deposeth 


'■Vil 


^:i 


j 


¥T^ 


4 


^^,5i'*i 'i]MÉÉ4^^  ^^^**Wl\V>- ''^^A     1     . 


!  ':m:' 


I   I 


[!'! 


!■     ! 


N 


f  I 


li! 


40  . 

and  saith  r^Oh  the  twentieth  of  October  last,  I  arrested  one  of  the^ 
pnsonÇr»,  who  n  J^  gives  his  name  as  George  Scott,  and  who  is  under 
^«j^afaon  at  PimAam,  whiçh  &  distant  from  St.  Jphns  iTïe 
Bisteôtof  IberviUe,  about  nineteen,  nulea.  I  was  eut  thew  bv 
the  mstoiction  of  thechief  of  poKce,>r.  Lamolie,  to  irwVif  î 
could,  the  persons  who  bad  broken  Wto  the  banks  of  St.  AJbans 
aforewid  ;  and  it  was  whilst  I  was  on  duty  there  that  I  arrestedTé 
said  Scott.  At  ike  time  I  arrested  him  he  was  in  the  nûjr^ 
station,  and  after  his  arrest  I  put  him  in  the  cnstody  of  wS 
Don^ue,  a  sergent  of  the  government  poUce  force  oï  tfie  oitv  of 

fiom  Montréal  and  he  said  he  was.  'I  thà  asked  hin»  from 
what  part  of  Montréal  ;  he  said  that  he  resided  at  the  head  of  St 
.h/^**?  8j^et;I  asked  if  hekneiFanyperson  Uiere,andhe  said 
\T  ''°'-  i^«»,'»'?f<i  I»imif  he  knew  me,and  he  reriiedhe  did 
not  4  «po«;jrhich  I  caUed  him  outside,  and  told  him,  àat  I  waH 
détective  offioer  from  Montréal  ;  I  then  searched  him  and  foundin 
his  po^eswon  tibe  sum  of  two  thousand  eight  hundred  and  fifty-nine 
doUawga  thirhH)ne  cents»  çompoeed  oFpromissory  notes  of  the 

îa-nS  K  ^i??*'^^*",°*.<^*T°'°°!7<^*"«^  greenbacks),bank  bills 
wsued  bv  différent  banks  in  the  sai^United  States,  gol^and  silvw 
fcoin,  and^one  doUar  andeighty  cents  in  the  postal  cnrraicy  of  thé  said 
Btates,  jmdfive  cents  and^one  penny  of  Canadiancurrency  whioh  I 
i°I/  T  ®  !*  A*  «»w»«i»*»o«-  After  taking  possession  of  this  " 
money ,  Ixîounted  it.  and  ^vmg sealed  it in  a  paper  package,  I  tied it 
S  *  P^I^J^?  j>a°dkerchief,  ani  deUvered  it  toSa£um?Lamo&e 
E8q.,çhiefof police.  OnSaturdayhi8t,thefiflhofNovemberin8tant! 
I  received  the  said  packa«  from  the  said  chief  of  poUce,  sealed 
and  tied  m  the  manner  and  form  as  ît  was  when  I  deUverèd  it  to 

fc*  w  ?  ''^''^^  ^*  ^^  P^^^*««  "»  ^^  présence  of  Cyrus 
Newton  Bwhop,  now  présent  for  the  purpose  of  letting  him  see  ite 
contents  wij  a  view  to  ts  iden%,  after  which  I  put*my  private 
mark  upon  it,  and  again  handed  it  over  to  thè  saidJàief  oY  Scé 
from  w^  I  haye  ihis  day  «ceived  it  in  the  sam^er  Lff  cS 
dibon  m  which  it  was  when  I  g^ve  it  to  him  upon  the  said  fifth 

T^!     A^*  ??^*^*.î  *^^''^  ^^  «^^  Scott,  I  aaked  him^his 
name,  andhe  told  me  it  was  George  Williams  :  I  told  him  then  t^ 

who  had  broke  mto  fte  hanks  at  St.  Albans,  aforesaid  ;  he  wpUed 
tibat  he  was  a  Confede«ite  soldier,  and  reaiested  our  protoSw 
WhenI  acoiwed  him  ofhaving  broken  intoâe  banks  of  CSSïï 
heneil^radBÛttedordemefhavingdoneso.    Eewasd^^S 
Jgihan's  clojjii  jTtiJMmeajced  toJe  mnoh  fiitigaed     «TSEr^ 


hf    U 


~,V  ""«^i^i^-^j    ji'ii 


'i^vï  i.  -*-J^M-.-*^=-i 


t^-j^l^KSU^»i^lUi>rr 


*1 

and  whom  I  put  into  theciufolr  of  «âld  RAr^-.JTwMT*  -J:  *^T^» 
The  foreffranir  dei»o2fa«nTS««  î?    swgeant  Wilham  Donohue. 

o       \  /  (Signed)  JOHN  O'LEARY. 

owom  beiore  me  ot  M<mtreal,  thig  )  i 

7th  Noveinber,  1864.  } 

Chas.  J.  Codksol,  S.S.V. 

truth,  ana  LTsiK"  "' *^'  **'P^""*  déclares  it  t^ontaîna 'fte 


/y 


Sworn,  taken,  and  acknowïedged,  on  the  ) 

«S^'«"ÏÏ**k  f^^  y«*^'  hereinbefore  J 

menboned,  before  me.  ( 

.    (Signed)  —        -  -    ^ 


JOHN  O'LEABY. 


"'H 


X-v.-' 


Chas.  J.  Codbsol,  J.S.P. 


,- 

^ 

p 

• 

> 

V- 

1 

/  ■  ': 

1  •--•' - — ;■ —     ■   — 

., 

~- 

'               ,               -           ■         .  J 

.^ 


K$'.>23ii^s)î^ï>«<.ii)'j  %.  '' 


»j^^^l!&»fe:aato^3<g&'> 


v. 


\. 


42 


PROVINCE  OF  CANADA,  ) 
DUtrki  0/  Éfmtrtal.       \ 


llll^ 


POLICE  COURT. 


The  examination  of  Rôttaell  Albert  Elit»,  of  the  village  of  Water- 
loo, in  the  County  of  Shefford,  in  the  District  of  Bedford,  Esquire, 
Justice  of  the  Peace,  now  in  the  city  of  Montréal,  taken  on  oath 
this  eighth  day  of  November,  in  the  year  of  oup  Lord  one  thousand 
eight  hundred  and  «xty-four,  at  the  PoUoe  Office  in  the  Court-house, 
m  the  City  of  Montréal,  in  the  District  of  Montréal  afdresaid,  before 
the  undersigned  Judge  of  the  Sessions  of  the  Peace  m  an«  for  tho 
said  City  of  Montréal,  in  the  présence  and  hearing  of  gamuél 
Eugène  Uckey,  Squire  Tumer  Teavis,  Alamanda  Pope  Bruce, 
Charles  Moore  Swager,  George  Scott,  Bennett  H.  Young,  Caleb 
McDowjUI  WaUace,  James  Alexander  Doty,  Joseph  McGrorty, 
bamuel  Simpson  Gregg,  Dudley  Moore,  Thomas  Bronsdon  CoIUm, 
Marcus  Spurr,  anc^William  H.  Hutchmson,  who  are  now  charged 
before  me,  upon  complaints  made  under  oath  before  me  under  the 
proviMOM  of  the  Treaty  between  Her  Majesty  the  Queen,  and  the 
Umted  States  of  America,  and  our  Statutes  in  that  behalf  made, 
^th  having  committed  within  the  jurisdiction  of  the  Utited  States 
u  '^^îi®'?*'*»  ^^^  foUowing  crime  mentioned  in  the  Treaty  between 
Uer  Majesty  the  Queen,  and  the  United  States  of  America,  to  wit  : 
—i*OT  that  they,  the  said  Samuel  Eugène  Lackey,  Squire  Turner" 
leavis,  Alamanda  Pope  Bruce,  Charles  Moore  Swager,  George 
Scott,  Bennett  H.  Young,  Caleb  McDowaU  WaUaoe,  James  Alex- 
ander Doty,  Joseph  McGrorty,  Samuel  Simpson  Gregg,  Dudley 
Moore,  Thomas  Bronsdon  CoUins,  Marcus  Spurr,  and  William  H. 
Hutchmson,  on  the  nMieteenth  day  of  October  last  past,  at  the  town 
ot  bt.  Albans,  m  the  State  of  Vermont,  bne  of  the  United  States 
ot  Amenca,  being  then  and  there  armed  with  certam  offensive  wea- 
pons  and  mstroments,  to  wit:  pistols  commonly  known  and  caUed 
revorvers,  loaded  with  powder  and  bail  and  capped,  in  and  upon 
one  Cyrus  Newton  Bishop  feloniously  did  make  an  assault,  and  tim 
the  said  Cyrus  Newton  Bishop  in  bodily  fear  and  in  danger  of  his 
lite,  then  and  there  feloniously  did  put,  and  a  certaia  sum  of  monéy, 
to  wit:  to  the  amount  of  seventy  thousand  doUars  current  money 
ot  the  swd  Umted  States  of  America,  and  of  the  value  of  seventy 
thousand  doUars  current  money  aforesaid,  of  the  moneys  and  pro- 
perty  of  the  bank  of  St  Albans,  a  body  corporate,  constituted  and 
recogm^  by  tho  laws  of  the  said  State  of  Vermont,  and  the  said 
Umted  States  of  America,  from  the  person  and  custody,  and  pos- 
sesagion,  and  against  the  wUl  of  the  said  Cyrus  Newt»n  Bishop, 
then  and  there  feloniously  and  violentlv  did  steal,  talr»,  ^r^H 


îft 


çftiriry 


^     ,  rorm  of  tue  statutes  oF  the  said  State  of  Vermont, 

in  such  case  made  and  provided,  and  agamst  the  pçace  and  dignily 


> 


48 

of  the  Mid  State  The  déponent,  SotweU  Albert  Mli$,  upon  hia  oath 
depoaeth  «^d  «uth  :--Abo«t  tfu^ee  o'clock  on  the  mSg  of  te 
twenty-first  day  of  October  la«t  ^^t,  I  wa«  infomed  Si  IJZ 
snspected  of  bemg  engaged  Jn  the  St.  Albans  raid  wm  stî^Z^ 
at  feall'fl  hôtel  at  the  railroad  station,  in  Waterloo  afrrelil  •  at 

railroad  cars,  having  taken  pas^for  Montréal,  ma  I  now  see 
hun,  and  recopizeTùm  by  the  name  of  Dudley  Moore,  as  one  of 
thepnsonershere.underexanunation;  I  arrested  the  ^d  mIotI 
and  caused  bm  to  be  taken  te  Hall's  hôtel.    A  short  t^e  aC 
warc^,  abont  ton  mitfntes,  the  money  contained  in  thTLkae: 
wbch  I  now  hav^  before  me,  was  haided  to  me  brEdwaiS^l 

Dudlejr  Moore,  and  also  in  présence  of  David  Frost.Sor  Aft^, 
receivmg  the  money,  I  counted  it  in  the  présence  of  'Ce  pe4^' 
and  fonnd  that  ,t  amounted  |to  nine  hundred  and  fifty  dollîïTd 
w^contemed  in  ton  packages,  nine  of  which  conSed  on7C 
tild  to^eZr'it' *^'  otherfifty.  The  said  ten  packaZ  w^e 
ïï  ^rr^  '''î/  Ç*^'  ^^^-  ^  ^a»  ^«0  handeâ  by  eTther-the 
9md  Langley  or  Martin  a  small  wallet,  which  is  now  piJduced  and 

wS^  a  t^n  i^^r*'  ^Tr"^y  «*"«d  greenba^ks  ;   thew 
was  ateo  a  ten  dolter  uote  issued  by4he  Confederate  Stetoa    ^hl 

s«d  mne  hundred  and  fifW  dollars^  which  iS^d  lïm  the  s^d 
^gley,  consiste  altogetLer  of  promissory  notes  of  X  Un^Sd  ' 

8tet?d^r.S?î^  "*îi'^  «^«^^^«^^    Air  havi^g,^  Sy 
stjted,  çounted  the  said  money,  I  roUed  it  m  a  handkeJchief  nut  ^ 

i^^TLT'^'  '''^'^  it,  and  deiivered  itte  tKlîcŒ  8 
,^^1,'   ^\*^*^*îï?®  P*^«^  which  bas  this  moment  b^endwed 
^  my  hands  by  Guillaume  Lamothe,  Èsq.,  Chief  of  PoUce  ÏÏd  I 

«m.  toe  a.t  I  «céiTea  the  «ùd  «un  „f  ,^^^  f^  J^^ 


li 


.'?:  .^ 

:rw) 

*'. 

1    '^ 

Av'^ 


li     .: 


I>  •   < 


1      -i' 


u 

Swom  before  me  ftt'Montréal,  )  ^'  -^'  ^'^I^- 

thie  8th  Novembef,  1864.     } 

(Signed)  CHAsJ.OotmsoL,J.p.p. 

Abbottî  '^''''*  °^  *^*  I"*«*^«"»  by'fteir^éomisel,  Mr. 

«nation  givenleS^ly  S^lttS^^d'^rT"  ^^^ 
nati(m^n^h»f ;TS4^îrtf  f"?!****  w^S^  ^  "^  «^ 

(SigiMd)       OSM;  J.  jCoraisbL,  J.S  J. 


ilS*:. 


lit 


t,^? 

v,** 


m^^î 

^ 

1^ 

^ 

* 

'    45 

j^^M^^  'j  Mh    pouob  couht.  I 

#^tfe4^?^^  or 

î»ouw,£rthe  % of  Mo^SS^hÎT?^^  tte  Court- 

promona of  tb«  Treaty  between  TwSî ^  .  ^S^"^  ""«  under  the 

rf  America,  tho^foBowimr  oSi«  JJÎ^  ï**?  ^^  *'*®  U»"*ed  States 
—For  that  tiliev.  thev  «ki^i  Q«r  7  w  "  otates  of  America,  to  wit  • 
Scott,  Bemietï  H.  rSg,  ffl  mSL^S'?,  ^T''  <*«o^ 

Moore,  Thomas  Bronsdon  S£  £1  ^^"^  ^"^'  I>«dlev 

Hutchm8on,on  the  nmeteenthïf^^/îf^i.^P'î"'^  »»<*  ™iam  EL 

of  St.  Alb^,  in  thrStete"o^  vîîiïJn^^^oft  ^^-'^  '^'  ^^ 

of  America,  being  then  and  the^î^Sf^?*?*  ^"^^^  States 

wea^ns  and  mslumente,  to  ^^  Su    "^  ^t'*^  ^'«^««i^o 

caUed  revolvers,  loaded  inU  pJ^lr'Sî^.ir'"^^  ^^^'^^  '«'d 

upon  one  ÇW  Newton  Bishoffiji^,^  *"?  «»l>P«d»  «  and      ■ 

hmi  the  sjii  Cyrus  NewttnKTb^^Jlïïfï^*"  *^'^*  «^^ 

hw  hfe,  then  and  there  feIom3  L  «?  î  îf  "***  "^  ^««'  «f 

monej,  to  wit:  to  the  amoaatS^v^^î'  *^  .*  f®"^  «««»  of 

9ionejof  the  said  tlnited  Ss  rf  A  Sl^"*"î  ^^^  <»«wnt 

Beveniy  liiouaand doUarsVm^i llfS!™»'.»»! ^  *^  ^»l«o  of 


i     J 


'  *  i  uAi&«i  ■• 


■•'  lé-ii-  • 


46 

of  the  said  State.    The  déponent,  aiorge  Mwin  FairchOd  nivtn 

19th  day  of  October  la^t  past  ;  ï  saw  noone  shot,  and  saw  no  acts 
of  violence  by  the  ïnen  Si  arms.     Between  the  hon«  of  thMe 

about  ten  or  fifteen  roda  from  the  said  St.  AlbLa  baS^en  T 
saw  about  twenty  men  armed  with  revolvers.    They  were  5l  on 

they  were  loohn^  for  horses.  One  of  the  partv  so  armed  and^on 
horseback  approached  me,  and  demanded  fi^m  Edward  NettletoT 

a  8e<»nd  tm»e,  at  the  same  moment  drew  two  revolvers  when  thà 
said  Nettleton  replied  thathe  could^ot hâve  hkhT  X  w^^^^ 
who  demandedit  said  he  wanfce^for  one  of  his  pàrU  wlj^ Sd 

ltw.W  f ^*««*«^  ^«^  «^*<>W  by  the  persC^eZi^ 
his  bat,  that  unless  he  gave  it  to  ftm  damned  qm^k  he  woiSdS 

NetUeton.  Atthis  moment  hewaswithmlixfeetofhun.  Netfleton 
seeing  tiie  revolvers  cocked,  put  his  hand  mi^W  his  coat  as  tfS 
the  intention  of  drawmg  an  arm  therefrom.  Upon  seeins  this  tibe 
gentieman  on  ho«ebacV  aaked  first  if  he  had  ^y  Sf  ,md 'ïd» 
to  show  hmi  he  inside  of  his  coat,  remarkmg  at  the  W  £  S 
if  he  did  not  he  would  shoot  him  throughT  My  SerTx^. 
We  ri'^ed'"*^''      *^  to-morrow  mombg  at  ton  o'clock,  an*  I 

GEORGE  E.  FAIRCHILD. 
Swom,  taken,  and  acknowledged,^ 
before  me,  on  the  day,  month,  1  '        , 

and  yeaiy  and    at  the  place  f 
aboved  mentioned.    ''  J 

(Signed)  Chas.  J.  Codrsol,  J.S.P. 

sand  eight  K3ïldred  and  surty-four,  the  déponent  above  mimed  re- 
tîST  befo-^^e,  the  underaigned  Charles  /oseph  Coursol,  Esquire, 
Judç  of  the  Sessions  ofthefeaoe  in  and  for  4  city  of  Mon^ 
and  being  reswom,  deposeth  and  saith:  I  then  told  Nettleton 
not  to  stand  an  msult.  At  this  the  man  on  horseback  pointedS 
revolvers  at  me,  and  asked  me  if  I  had  any  ams  with  me.  1 1^ 
hmi  I  had  Hone  ;  and  I  hôped  he  would  not  shoot  an  unprotected 
51T;  rà  *^  '^^"'«°*  ««>«»•'•  of  tte  party,  the  one  who  needed 

fîSîïî^K     f^"f  "^  "^^"^"i^^  *r  f  «^I^en»  at  the  said  Nettieton, 
tellmg  the  othérperaon  on  horseback  noLto^parley,  but  t»ahoot  tb^ 
âT'nîrT-    ^  tSij  time  tiie,^  was  a  c^Kp  t^^ 
their  party,  upon  whioh  the  two  persons  referred  to  rode  off  in  th© 


H-s     #'  *  "^^  ■S'i^ 'iiwj.ï^^^mT^!^^^ 


47 

diçection  where  help  y^aa  caDed  for.    I  now  recognizç  and  point 
ont  83  havmgbeen  among  the  armj  partv  I  saïT  <^f   Aft: 

now«.dere;a^tion  whoiveth.irn:m^^ 
Charles  Moow  Swager,  JosepE  McGrortv,  Caleb  McDowaU  wJff 
and  George  Scott.  Thèse  five  persons  I  saw  on  h^S^t  ®i 
eachWithtwo  revolvers.  Ole  t^r&^t'^ïrrSt^^hf'llSïe 
referred  and  who  presented  revolvers  at  sJid  Netûeton  S  Ltlr 
were  and  still  are  unknown  to  me.    One  of  thaaA  é^  JT   ""J^"» 

«jw  hjm  al  about  two  ro<U  fiom  the  St.  AlbMB  bMA^re  »ewS 

««^•^'^tI    j    ^°'  *V  ^''®  Pi^oners  whom  I  hâve  poiùted  ont 

line  of  which  I  hâve  apoken  was  beine  formed  Isaw  C^Xt  ?? 
a  citizen  of  St.  AlbaS^,  approachin/tS  i^v  of\3        °^?I' 
a  ^  in  his  hand,  foljow^d  h^TiT^fClmeTof  STZf 
He  apparently  waa  tr^g  io  ie  a  gun  at  them,  bîS  codd  nK^i 
it  off     It  was  then  nearly  four  o'clock  in  the  aftemoon     Aft^:  fh  ' 
amed  party  amongst  whom  were  the  said  five  priSSra  Û^HfiîS 
bj  me,  had  fired  two  or  three  ro'unda  eaoh  ÂIîrÇ^L  î  '**®°*^«<^ 
manageable  andthey  headed  off  XtïSt^eâons     AtZ  '^" 
menti  sawone  onfieparty,  and  theXone  on  fiS     ^î^™"^ 
caUed  Captab  seeingt'itowithoS  holTX^^^ 
hvery  stable  and  ordered  Mr.  Fuller's  saddler  tnuLÎ  il      *t  ! 
was  then  standing  there  to  the  said  l^X^bebni^ 
who  had  not,  as  yet,  got  one.    The  saffier  did  as  he*ïâ  ordeïtt 
led  the  horse  caUed  for  and  gave  Mm  to  the  BaidrJ«.r«Lk      t  i. 
spoken  of  as  having  been  S  fooT  t£  ^X^P  J^""  ^  ^*^' 
panied  the  saddler f,5m  the  11  wsUle  keed^ftjf  ^^^  *'-'°°^- 
at  him  until  the  said  horse  was  SîenZ  '  A  S£?§.-     "volverpomted 

was  a  considérable  coSiriS^Zgfiet^a^'wr*^^^^ 

off  fC  heï/iow^'sflîbr  X"^^  •^•i  ^  "«^g 
I  saw  at  the  «fty  ïf  AïK     T***^-    They  were  the  same  parly 

b, oMaa'.  oJoth«.    iDlt ZI^'aiSÏ? Ck^r^iî 


«ad  «Isewhere  in  the  said  to^^ofs? 
the  citizens  '    "       -  - 


ariied  partjy  at  the  said  St. 
Albfuia. 


<. 


i  ttu  of  Iheir  Kyw.    I  Uni 


l  'i 
■    i 


<.w  ■■-,-•.     •■•. 


i*j*  Hs^i^iî'vu  1»^  jT     r*«îaJr-*- 


ii:r* 


\m^ 


0' 

1   -MU: 


,    !-■ 


nr  'TT 


!    h/ii 


I ÏU 


Swom,  taketi,  and  acknqwledged,^  '  ^^^u^. 

befojre  me,  on  the  day,  mooth! 
and  year,  and  at  the  place  here- 
m  before  mentioned. 

CSignedy  Cha8.j/Codr8ol,J.S.P. 

sence  of  ïhe  said^riCnSTÏ^^^^f  ^®"  '«^^  ^  *^e  pVe- 

Q        '     ,^  '        <^EORGE  E.  FAIRCHILD 

Siw)rn,taken,andacImowle(îged,)  ^^V.illLp. 

on  the  day  month,  year,  ani  at  J 

tne  place  above  mentioned.       ) 

(Signed)  Chas.  J.  Coursol,  J.S  J». 


PBOVWOB  OP  CANAIOA.  i 
^i*trietof  Montréal.      ' 


^  JStti^    POUOE  COURT. 


our  Lotd  one  thonmn.1  *;«îl!  iT^    jT    ,  ^^®™'*«'»'û  ^^  year  of 


-Jw  IV  Srmr^^  mS:5'«'^'""'  T?™"  ^'".  Altm». 


vm 


49  °    . 

Joseph  MoGrorty,  Samuel  Simpson  Greffe  TinAU^  tit        m,        '^ 

«e  now  chai;ged  l,efow  mS,  «ioTcomriSi?-„S^^*»'  Who 
l>efore  me  «nder  th<)  provisioni  of&e  S^iî^'^r^^  <»«» 
the  Qaoen, and  thé  VmtJs^jTS •^*^**? ^«' ^ajesty 

m  that  behalf  made,  with^^g  cS>mLu^^^^ 
of  the  United  StatJà  of  aSI  aT^w-^*^  the  jûrisdiotion 
the  Treat^  Utfk^n  fier  ISî  *£  i.    "^«i T®  "«««oned  in 
of  Amerfoa,  tolntt^F^^^tà^T^'^i^^  United  Sttftes  , 

.  Moore  Swager,  Geor^  Scott',  ^mSuYorT  cS^u'ir  ?^^*« 
WaUace,  James  Aiexàjder  dW,  J^pf  V^S5"i^^  MoDowalI 
son  Gregg,DndleTlîo£e,  ThomiSSîïï^n'^'l*""»®^  Simp- 
and  W&x  H.  HuteWns^nT&e  l^?n.^^  Spuiî^ 

past,  at  the  town  of  X^b^lTl  «tt  ^K,^^  October  W 
United  States  of  America,  bSi^ntdt?«tf^^^'^^  ^^'^^  «^ 
offensive  weapons  and  instramenta  S?^*  *^®^,ànnedwith  certain 
and  caUed  reVoW,  loa^'î^i*'' *i4^^' PJ^ll"^^ 
and  n^jon  one  Cvrus  Newton  BiSoSl^v  SS"  ^l.*^  '*Ï^<*»  ^ 
and  him  Ûie  sud  Cyros  NewtoHlîS!»;  ^  i^,    ?  "^^  »»»  aaafuûC 
of  his  life,  ta^d^^'SS'o^ir  pTO 
inoney,  te  wit:  to  the  âmount  of^W  thla^J^^'^f*"'^  ^"^  «^ 
money  of  the  said  United  ^l^  ?f  ÎL^^**"i  '^^"'^  «««^nt 
seventy  th^M^d  àolb^^^J^^^^^f^^^fl  ^^  valulof   < 
property  of  thé  bank  of  St^bZ»  ÎÎT  f  ^'^^^^^^^««oneysand 
and  re^gni^d  bT^et^^'of  feS  &^%^*«'  ««^^ted 
9a.d  United  States  of  AmwicL  fiî,^^! ^«f  ^T'^^^  ^^  ^^ 


away  ,^g«nst  the  form  of  t^e  Sta^teTof  1  J?^'^^^*^^^^^       «W 
m  such  casô  made  ami  proS  a^l"^"*  ?^*^  <»f  Vemont, 

'^'--.f  the  sud  State.    Cd^^nSf^rJ  «»!J-^«ani 


dignityofihesaidStete.    Çï^d^nSf  i£?J /?'  P*'^^  «^^ 
upon  his  oath  deposeth  and^sïF  ît  atî^''*f'"'''*î^«»>^» 
^emornhîgofthetwentiettdaVrfOnLî    ? \*^*  ^^^««k  in. 
tjoof the prisoners,  Spurr ^dScf  atft^'- ÎSi  ^'V  *^'*«*«d    ' 
^^îr^^^  bed.    iVent  te  ft^SiroS  J^H""  Stenbôdge.    / 
and Ifound  it bolted.    Martin SSèrfsLî^lS^^!^®'®  *^«y ^o^V-  i 
one  Cross,  C.  W.Martind^Sdi^S«^^'"'^«»'»^>'^ 
présent,  but  those  were aU  thati  r«SJ:   ^:  ^^^ ^^aeéthers 
«d  Mr.  Blym,,  „,agi.^^ 
^teiwd  tiie  room.  and  the  ma^t^Tl^  P'^sem.    i  «4  my  toartv 

toldaiemit  was  for  robbSe  X  8?%^^  W  Wéiré  arresfed»:!     / 


'*\ 


*  . 

• 


«ll'i. 


/  •  ■ 


■X 


l" 


/ 


.#ii 


■J- 


ar^ 


h 
■n  y 


IM 


M, 


If 

k 

II 

'  ni; 


il 


them.  I  seariÉlia  to  eee  if  I  oould  fiiid  anj  arms,  and  I  foond  foor 
revolren  between  th6  feather-bed  and  straw-bed,  and  in  the  same 
place  a  large  qoantity  of  faank-bills.  I  took  the  revolvers,  and  huided  > 
thmcio  Mr.  Whitman,  the  magiatrate,  and  also  some  of  the  bank- 
biliB  ;  the  balancé  of  the  money  I  think  was  giren  by  Martindale 
toMr.  Whitman.  Mr.  Whitman  took  aw^  the  monej  and  the  revol- 
vers. I  put  the  prifloners  in  charge  «jf  C  ."M.  Barker  ^d  Irwin  Brigos. 
I  did  not  identify  the.money  that  I  took.  After  conversation  With  Mi. 
Whitman,  I  went  back  taa^  searched  the  prisonerë  further,  and  foond 
in  their  possession  four  hundred  »nd,  twentj-seven  dollars  and  thirty- 
five  cents  in  bank  notes,  scrijps,  gold  and  silver.  This  money  I 
gave  to  Chiillaume  Lamotlie,  E^.,  ohief  of  police,  on  the  twenty- 
fifth  of  October  last.  On  the  twentieth  of  October  last,  the  prisoner 
now  calling  himself  Bmce,  I'  nnderstood  to  call  himself  at  that 
time  Bennett,  and  the  other  one  called  himself  Bruce.  The  pris- 
oners  on  the  same  day  stated  in  my  présence  that  the  monéy 
which  had  been  found  in  '  tiieir  possession  they  had  got  firom  the 
.  bank  in  St.  AlbansI    I  saw  at  Stanbridge,  on  the  same  day,  the 

grisoners  Oomns  and  Lackey,  and  on  i&e  next  day  tiie  prisoners 
[cGrorty  and  Doty.  Thèse  last  two  were  arrestêd  in  a  bam  in 
Dunham  :ln  the  possession  of  McGrorty  and  Doty,  bank-bills  of  dif- 
férent ^ds,  some  gold  and  silver,  and  somè  bonds,  were  found. 
The  prisoners,  Spurr  and  Bruce,  stated  on  tiie  twentieth  of  October 
last  that  they  had  come  from  Burlington,  Yermont,  the  previous 
moming,  in  a  buggy  to  St.  Albaiàs.  At  the  time  the  prisons»  I 
hâve  referred  to,  made  the  several  statements  that  I  havé  mentioned, 
no  threats  were  made  use  of,  nor  mdncements  held  out  to  procure 
such  statements,  which  were  voluntary  on  their  part. 

The  foregoing  déposition  having  been  read  in  the  présence  of  the 
prisonerà  so  chu-ged,  the  déponent  déclares  the  same  to  contûn  the 
truth,  and  hath  signed 

E.  0.  KNIGHT. 
Swom,  taken,  and  acknowledged,'^ 

before  me,  on  the  day,  month,  (  - 

and  year,  and  at  ihe  place  hère-  [ 

in  before  mentioned.  )  / 

(Signed)         Chas.  J.  (joujisol,  J.S.P.  / 

.  And  on  tiiis  day,  me  lOth  of  November,  in  the  year  (^  oor  Lord 
one  thouaand  eignt  hundred  and  ôxty-fbur  the  déponent  above 
named,  liçappeared  before  the  undersigned  Charles  Joseph  Coursol, 
Esquire,  JFnage  of  the  Sesâons  of  tiie  Peace,  in  and  for  the  oity  of 
Montréal  >  being  n-owonï  iri  the  présence  of  tita  nriaonera  g 


the  foregoing  déposition  is  then  and there readto the said déponent^ 
who  déclares  upon  oath  that  the  same  ccmtains  the  tratn;  and 


JH^'' 


g>«^l«,«f'è.J  fH»i^^T».s>iff •<!.•%  1   ^■^fr^.'tpïiît 


y  / 


51 

thereupon  the  said  prisonere  are  asked  wlifith«.  *»^    u    ^ 
questions  to  put  tothe^aîd  déponent  an-Sf^r^l-   ^^^  ^^®  ^y 
tiiej  had,  the  foUowing  evidS  k'S5«^^  l^avinganswered  Mt 

withou^  any  warrant  at  aU.    I  had  no\„iînS#  ®  8*>i  pnsoners , 
but  the  people  of  the  viUaie  told  m«  fW  ^/°''  T^^ë  then^ 
«litted  ai;  the  St.  AlbaTbSks  LTtSîth«îfS^^^  '^^^^  <'oS: 
were  going  to  rèb  the  StanbridS  bîït  ^f"^"^  ^'^^  thatthev 
informatioS  on  o^^h  havSÏCC^'  7  î?*  ''"*  *^"«  ^f  any 

did  not  aay  anything  else  at  tjwit  ff  t?  foar^.'ï'  #1^  ^«7 
wards  they  told  W  the^^  fï„fir'\**^^^ 
count the  ionejr  I  io^ZZ^Sft'i\  -""^f^'    ^  ^à  no^ 
exapiine  it  Bmket^^^J^^til  f  «  û"*  "»^cé.    I  dfd  not 

got  the  mopey  frbm  the  St.  AlbaTbânks  tfSvZ^u  "*"  *^«3^^ 
haa  got  it  on  a  i^d,  whiçh  Aey  S  ZSS  ^f  S  ""^  <^**  *% 
authorfty  of  the  (hr^Xr^t!'^e^,Tl^^\t^^^^>^mid 
Bhown  as  su^h.    It  wm  ii.»»A»f  fk-J?      ,'    ,     *"**  i'  would  ha 

MDTerMtion.  '  "^  «»»  the  money,  aU  «un»  out  ù  Ihe  «^° 

Swom,  taken,  and  acknowledired  ^  -     ^'  ^^•  ^NIGHT. 

before  me,  on  the  dav,  month 

and  year,  aDd  at  the  place  be-Y  *     •  , 

fore  mentiohed.  1 

(Signed)  CaA8.i.ÇoDEsoL,Ï.S.P.      "- 


^^«O^IN^BOP  CANADA,) 


•The 
in  the 


POLICE  COURT. 


./ 


m 


viiïCi^ 


ïih'A- 


V 


ivm  X 


'1  !:■* 


62 

Sqiïire  Tumer  Teavis,  Alaœandà  Pope  Bruce,  Charles  Moor©^ 
Swoger,  George  Scott,  Bennett  H.  Toung,  Caleb  MoDowall  Wallace,.  > 
James  Alexander  Dot^,  Joseph  MoGrortv,  Samuel  Simpwn'Gregg, 
DucUey  Moore,  lliomas  Bronadon  ColLns,  Marous  Spuir,  i^ 
William  H.  Hutchinson,  vho  are  now.  churged  before  me,  upon 
compliaiiits  made  under  oath  before  me  under  the  provisions  of  the 
Treaiy  betweeu  Her  Majestr^e  Queen,  and  the  United  States  (rf" 
Anienoa,  and,  çur  Statutes  in  that  behalf  made,  with  having  com- 
mitted  within  the  jurisdiction  of  the  United  States'of  America,  th© 
fpllowing  crimo  mentioned  io  the  Treatv  hetween  fîer  Majesty  tire  ^ 
Q^een,  and  the  United  States  of  Amenca,  to  wit  :— For  that  they, 
the  said  Samupl  Eugène  Uckey,  Squire  Tumer  Teavis,  Alamanda 
Pope  Bruce,  Charlc)^  Moore  Swager,  George  Scott,  Bennett  H. 
Young,  Oaleb  McDowall  Wàllace,  James  Alexander  Dofy,  Joseph 
McGrorty,  Samuel  Simpson  GreggJDudley  Moore,  Thomas  Brons- 
don  CoUins,  Marcus  Spurri  andmlliam  H.  Hutchinson,  on  the 
nineteenth  day  of  Gctôber  last  past,  at  the  towa  of  St.  AJbans,  in 
the  State  of  ,%nn(mt,  one  of  the  United  States  of  America,  bemg 
then  and  there  armed  with  oertjûn  offensive  vreapons  and  instru- 
ments, to  wit  :  pistols  commonly  known  and  called  revolvers,  loaded  ' 
with  powder  and  halls  and  capped,  in  and  upon  one  Cyrus  Newton 
Bishop,  feloniously  did  make  an  assault  and  him  thé  sàid  Cyrus 
Newton  B^op  in  bodily  fear  and  in  danger  of  his  life,  then  and 
there  feloniously  did  put,  and  a  certwn  sum  of  money,  to  wit:  tô 
the  amomit  ôf  seventy  thousand.ddlars  current  money  of  the  sud 
Uiûted  States  of  America,  and  of  the  value  of  seventy  thousi^nd 
dollars  carrent  money  aforesaid,  of  the  moneys  and  property  of 
thé  bank  of  St.  Albans,  a  body  corporate,  constàtuted  and  recoft- 
nized  by  the  laws  of  the  said  State  of  Vermont,  ând  the  said 
United  States  of  America,  from  the  person  and  custo^,  and  pos- 
session, and  against  the  will  of  the  said  Cyrus  Newton  Bishop,  then' 
and  there  feloniouslv  and  vlolently  did  steal,  take,  and  carry  atray 
against  the  form  of  the  Statutes  of  the  said  State  of  Vermont,  in  such 
<*èae  made  and  provided,  and  agunst  the  peace  and  dignity  of  the    , 
said  State.    Tho  déponent»  Qtorgt  Robert»,  on  his  oathdeposeth 
and  saith  :  I  bave  been  clerk  in  tiie  American  House  in  St.  Albans 
aforesaid,  sipce  March  last.    I  recognize  two  of  the  prisoners, 
namely,  Young  and  Doty,  having  seen    them  in  St.  Albans 
priprtôthe  nineteenth  dàyof  October  last  past.    t  saw  Yonng 
theïe,  I  thïnk  twice  befort  that  day  ;  but  I  am  noi  sîire  if  it  waa 
more  tha^i  onèeT  I  saw  him  certidnly  once  in  the  Americui  House 
during  thfi  iaonth  prier  to  the  nineteenth  of  Ootober  ijiBt.    About 
,4wo  yotook  k  the-afterroKHr  of  the  last  mehtioned  day,  I  paw  iû   ^ 
firent  of  Ae  National  bank,  a  man  named  Blaisdale,  of  St.  Albans, 
having  a  cUstUrbaiice  with  the  prisoner,  whom  I  now  recogmze. 


'l^/ç^^VT-l^v  'î*S*5?*5'fî^^^^ 


58 

•calling  him9elf  Caleb  MoDowaU  Wallace     Tl,«v  -n,*  -*«,    i- 
tQgethwih  front  of  the  said  baï     bKVuTI/î;  îf  2^^« 

Mcu^asmg-hJHfas  [Colonel,  fdr  assistance.    The  Dri«)nAr^/.ft  «T» 
-  «»°»«^*^ba<*:  from  the  yard  of  ^e  A^rS^Z^^lZ 

I reco^eZS,^? ^^lîL  M:îf *ï*" House, among  whom 

pejbegan  to  s^P  what  teams  there  wweb^C^irfi.*^^^  ' 
^e  horses  belonging  to  the  teams,    mast  I  w^  hX'i^    ^' 

mmmmë' 

jk  .i5«4îft  "srfcf  •rïS'E* 


«,  iiaa  iwtjr,;  at  at.  Albans,  as  I  hâve  mentione4,  they  were 


/ 


,V-U.ryv»  /■ 


I.    •  .», 


64 
dressed  in  ordinary  civilian's  qlothes.    I  saw  nothmg  eiker  in  de* 

chanwterwhatever.  Ontheafternoonof  thenineteenthof  October 
iMt  past,  the  occurrences  J  hâve  epoken  of  did  not  look  like  & 
mJitary  expedifaon.  I  thought  the  anned  personp  were  a  mob, 
bv  t£f  n"^***??  of  October  last,  the  prisoner,  Swager,  was  known 
bjr  ije  name  of  Jones,  por  to  the  outbreak  mentioned. 
.  Ihe  foregomg  déposition  having  been  read  over  in  the  presenofr 
ofaeprisonersso  chargea,  the  déponent  deckres  that  the  same. 
coutainfl  the  trotii,  and  h^h  aigned:  . 

Swnrn  Vov  A     ,       ,  .         GEORGE  W.  ROBERTS. 

Bworn,  taken,  and  acknowledged,> 

before  me,  on  the  day,  year,  I 

and  month,  and  at  the  place  f 

hereinbefore  mentioned.  J 

(Signed)         Chas.  J.  Coursol,  J.S.P. 

Thé  foregoing  déposition  fcftving  been  made,  and  read  in  the  pré- 
sence of  the  swd  pnsoners,  they  are  asked  if  they  hâve  any  quea- 
taons  to  put  to  Je  àeponent,  and  that  having  decl4d  by  Mr.  ]êerr, 
the^counsel  that  tW  had,  the  foUowmg  évidence  Is  taken  on 
croas^xammation:  When  I  saw  Blaisdale  and  Wallace,  they 
TiT*  S?"  standmg  up.  Blaisdale  had  hold  of  him  somewhem 
ï«  «Lrw''®?*  j^  was  about  twenty  yard«  from  Young  when 
he  shot  Huntmgdon.     They  apparently  were   taUdng  together 

wanS^H  «''.''''*;  ^  «^o'Jd  J'^dge  from  Yomig's  action  that  he 
wanted  Huntmgdon  to  go  across  in  the  park  where  we  werte.  I  saw 
ton  or  twelve  men  near  the  American  House  belonging  to  the  band. 

tl  %,^^^'^  «^d,ï»»>^«  charge  of  them  at  thatîirtVf  the 
town.     They  appeared  to  act  together,  but  I  saw  nTphm  of 

^^rl\l  :^T%T'''  °î°\i«  St.  Albans  armed  the  wL  they 
W(Bre,  with  one  of  the,r  members  proclaiming  himself  an  oMcer  ii 

seS^  m?n  V  ^^""^  °'^''  ''"?  Confederate  t?oops  in  active 
n^^\  ^rJ^^^  *'*^®  ^"^  *^®  ^®"«»<ïa  of  thfAmerican 
Hçuse  he  said,  «  OenSeman,  I  am  an  officer  in  the  Confederate 

«  mT^'.  i*''2  ^^1 T*^'^  *^  **^o  *^  *own,  and  I  am  goin& 
to  do  it;^e  first  that  offers  résistance  I  wiU  shoot  him."    St 
A^ans  has  been  a  recruiting  post  for  the  American  army  befom 


.  aâisv_ 


g. 


11»"î  ,f'-fc*-'^-»p»'J  • 


■;^'  -y 


'«jii^'^%  C'.^^'l 


•  65  »  I 

before  me,  on  the  d»y,  year,  I 
"   «od  monthj  and  at  the  place  f  '  ^ 

hereinbefbre  mentioned.  J  .  " 

(Sigged)         Ohab.  J.  (Joumol,  J.S.P. 


m 


PROVINOB  OP  CANADA.? 


POUCE  COURÎ. 


în  ■^i^iTîl?'!  ""i  {^  ^^J^ghUn,^  or  the  ciiy  of  Montréal, 

v2t  S^"*  of  Montréal,  chfef  çonatable  of  ie^Govemmen 

rolice.  taken  on  oftth  fiiio  *«».*k -j- *  iw— _.»_       .     ..      "*"""• 


VrM^l  7^Z vxv"UB»x,  umei  çonataoïe  ot  tfte  Wovemment 

Pohce,Jaken  on  oath  this  tenth  day  of  Noveniber,  in  the  year  of 

nm^^  T  î'"^^  *'«^*  hundiidandirty-foCat  the^pSce 
of  Monjeal  afore«udj^  before  the  undSrmgned  Judg^  of  the  SeedoM 

f  A  J'*''  "î  ï^  ^^',  *i.*  «^'^  <^<y  of^'Montwal,  in  the  p^^ 
and  hemng  of  Samuel  Eugène  lickey,  Squire  Tumer  ^ea^ 
Alangnda  Pope  Bruce,  Charles  Moore  sikge?,  Georg^tt  C- 
î^«?' J  r^^iP^i'*^  ^^^^^^^  Walla*e,  lames  AlfSr  IW 
BîSif  rS^'  ^""'^  ^"'FonOregg.Dudley  Moore,  ThS 
wh^nnSSr  î^rr  ^P*^'  and'Villiam  ^H.  Hutehin^ 

befoi^runSîT^  ^^^  "'"'.T"  °°'"P^'^*'  «>»^«  undeToS 
Deiore  me  under  the  provisions  of  the  Treaty  between  Her  Maîflatv 

SStte^f^T^^  ^^>r"?-'  «IHur  State 

Z  TTnSîï  s?;  '  ^*ï  ^^"S  commfttted,  within  the  jurisdiction  ojL 
Tvl^wi****i^'*^^;°?"<''^'  *^«  foMo^i^g  cri°>e  meitioned  in  the 
Î^L  .— f  ^*J  ^''^  ^^^  <^«««  ^d  the  United  StaSsof 
SS  T^nîï^V^**- ^^''î,*^'^'?^  «^^  Samuel  Eugène  Uckey! 
fiS,  «  '  ^1?"^'  ^Ia™«^d*  Pope  Bruce,  Charles  Moow 
^ager,   George   Scott,  Bennètt   H.  ^oung    Caleb  MoT^^JS 

IifG^iTudf^^r^'^^a'^ 

W    S  mml^  Moow,  TJ^^^as  Bronsdon  Collins,  MarcS 

opuiT,  and  Wilham  H.  Hutchinson,  on  the  nineteenth  l^nf 

2oS^/  ^*.  ÎTV*.  ^'  ^"^  <>f  St.  Albans,  in  the  Stote  of  ^ef 
Z«V  '*f  *^«  V°ited  States  of  America Aebg  thetw  there 
amed  with  certain  ofiènsive  weapons  an^inst^men^  ÎSî! 
^bcommonlyknownand  called^revolv^riôS  wfCw^^ 


*  Iffl*!^^  Iv^^'-S^^        if.'^*     i.- 


■i> 


66 

States  of  America,  and  of  the  value  of  sevwity  thousand  doUan 

^?^    *  "****y  aforeeaid,  of  the  mone;^»  and  property  of  the  bank 

of  St.  Albans,  a  body  corporate,  oonstitated  and  reoognised  by  the 

lawB  of  the  aaid  State  of  Vennont,  and  the  sakl  United  States  of 

Ainerica,  from  thejperson  and  oostody and  possession,  and  againat  the 

wiU,  of  the  said  Cirrus  Newton  Bishop,  then  and  there  Soniously 

and  ^olently  did  steal,  take,  and  canry  away,  against  the  form  of 

the  Statutes  of  the  said  State  of  Vermont,  in  suoh  case  made 

and  pronded,  and  against  the  peaoe  and  dignity  of  the  said  State. 

TJe  déponent,  John  McLofug^,  on  his  oath  deposeth  and  saith  • 

On  the  20th  of  October  last,  I  reoeived  orders  to  proceed  to  Ôt! 

Johns  and  from  thenoe  to  Famham,  in  pursuit  of  such  persons  sjs 

might  be  found  thereabouts,  or  elsewibre»  who  had  sought  refuge  in 

Canada,  aaerhaving  been  engaged  in  ûie  St.  Albans  raid.  In  accord- 

ance  with  my  mstraotions  I  proceeded  there,  accompanied  by  Mr.^r* 

Sowles,  cashier  of  the  Fnrst  National  bank,  at  St.  Albans,  and 

Détective  John  O'Leaiy.   ,Upon  the  aftemoon  of  the  said  20th  day 

^  OctoW  hùt,  a  prisoner,  whom  I  now  reoognize  and  identify  as 

George  Scott,  and  now  under  examination,  wàs  airestod  by  sud 

J?lm  O'Leaiy  afr  the  raihmd  station  in  Famham-,  b  the  District 

of  Iberville.    I  was  présent  at  his  arrest  and  at  his  search,  which 

took  plaçp  unmediately  after  his  said  arrest.    Upon  his  person  were 

found  two  thousand  eight  hundred  and  fifty-nine  dollars  and  thirty- 

one  cents,  which  was  taken  charge  of  by  said  O'Leaiy;  and  which 

dunng  his  examination  as  a  witness  in  this  matter,  at  which  I  was 

présent,  he  nroduced  and  identified  as  the  same  money  which  he 

took  ^m  Scott.    After  he  had  been  arrested,  and  the  money 

taken  from  him,  he  stated  he  waa  a  Confederate  soldier,  and 

clamed  protection  as  suçh.    He  was  dressed  in  civilian's  clothes 

and  lodked  veiy  much  fatigued.     He  had  no  fire-anû  with  him! 

On  the  followu]^  moming,  the  2l8t  October  last  aforesaid,  at  thjB 

hour  of  seven  of  the  clock,  I  arrested  in  the  same  jOace  where  n£ 

Scott  was  taken  another  person,  who  gave  me  his  name  as^a^S 

Gregg,  whom  I  now  point  out  and  identify  among  the  prisoners 

hère  under  examination  under  the  name  of  Samuel  Simpson  Gre/M 

After  having  arrested  hun  he  told  me  he  was  goîng  to  Montra* 

and  from  there  to  Québec,  where  he  had  some  friends.    Healso 

said  that  he  came  from  Kentucky.    I  then  searched  his  person, 

and  found  upon  hmi  thirty-one  dollars  aûd  eighty-one  cents  :  con- 

sis^g  of  on©  twenty  dollar  gold  pièce,  6ne  five  doUar  gold  pièce 

and  three  one  dollar  bills  upon  banks  in  Canada,  and  onè  dollar  biU 

of  Ji»e  Wmdsor  County  bank,  one  dollar  and  ^i»irty  cents  in  sUver. 

*^<>Pe  d<>Mar  «mf  for^-fije  gfiotg  in  ihfl-^jieatal  ouirency  of  ^& 

imted  Stat^^d  six  cents  in  coppers.    He  had  no  other  money 

Thèse  sums  of  money  I  now  produce.    They  hâve 


'    -H^iJSH^hU 


*  :»" 


ft^v 


>1^' 


renÀined  in  my  possession  ever  ainoe.    I  alan  fn„r,^  l- 

«on  nino  photo^pSribT  At  the  ^  I  mtS«  *k       "^^i?  ^/  P*"^ 


Oregg,  he  immediately 
présentée!  a  revolveJr  ai 
robbing  it."  I  now  se 
I  believe  aie  photonra] 
correct  likeness.  Hé 
any  6f  the  other  photo, 
upon  the  back  of  whicl 


^at  u  the  Ukeness  of  the  num  who 

^he  bank,  whilst  the  others  were 

"5^**îon  tte  said  WaUace,  and 

»^ch  hw  name  is  pencilled,  is  a 

'  any  particular  remarks  about 

-_— ■;,:Jïn  Â  ^*'*>P^  '^  ««Other  of  them, 

tiîe  Wness'^liiriS^^^rSmas^^^^  ^'^' 

under  examination.  ^t  thn  hW?Jr^°''.  ^°"*^'  P°^  ^ 
graphs,  I  askTthe  s^d  Grtgg^'^hos^à^^^^^^  *^««  P^^ 

put  unon  the  back  of  each2\r^rw&ri?;L'''''À'"i^ 
said  dregg  waa  dressed  in  civilian's  ploSes,  md^Z  sufferin^'k^! 
a  spram  of  the  ankle.     T  had  nn  fi,^!!  suffenng  from 

Swo,j,r4.n,  and  .cWledgedl  McLOUGHUN. 

before  me,  on  the  day,  ponth,  I 
and  vear,  and  at  the  place,  hère-  f 
mbefore  mentioned.  J 

(Signed)        Chas.  j.  Cotosol,  J.S. 


if  they  hâve  a^TâtionTto  C^î^'îr  '•^^^'  *^"^  ^«  ««^'«d 
folk^ùg  évidence  is  tekei  on  croL^ZxSf'         ^''^^  *^' 

Gregg  «nder  m^  own  respon8ib4     î  hS  "o  w^^t     "'''*'^ 

^nce  of Ts^d  pS^^tr  ^I^}^^  Ving  been  read  in  the 
■thetruth.andharsS      '         ^*fô^S  ?r]^  i*  <«>°*a^ 
Swoni,  4ken,TdTwwledged^    ^^^^  ^'^OUQBUX 
oefore  me,  on  the  day,  ^bA. 


and  vear,  and  at  thetime,here- 
.inbefore  mentioned, 

(Signed)       Cbas.  J.  Coubsol,  J.S;P. 


m: 

1 

1 

^rTfTf', 

1 

1 

1'  iÉ 

1 

1 

l/t 

i 

1 

M 

ft 

î 

^ 

1 

1) 

1 

i 


t 'i 


/'    / 


'/ 


il  m-' .  < 


58 


PROVIIîOP  OF  CANADA, 
•  District  of  Montnal. 


«âiâà 


POUCE  COURT. 


Examination  of  Jarrm  JttisaeU  Ai^ingtèn,  of  the  town  of  St. 
Albans,  in  the  State  of  Vermont,  one  of  the  United  States  of 
4-nierica,  marchant,  now  in  the  city  of  Montréal,  takcm  on  oath 
dù8  eleventh  day  of  November,  in  the  year  of  our  Lord  one  thou- 
sand  eight  hundred  and  sixty-four,  in  the  Police  Office  in  the 
Çourt-house,  in  the  city  of  Montrealy  in  the  District  of  Montréal 
aforesaid,  before  the'îmdersigned  Judge  of  the  Sessions  of  the 
Peace  in  and  for  the  said  city  of  Montréal,  in  the  présence 
and  hearing  of  Samuel  Eugène  Lackey,  Squire  Tumer  Teavis, 
Alamanda  Pope  Bruce,  Charies  Moore  Swager,  George  Scott,  Ben- 
nett  H.  Young,  Caleb  McDowall  Wallace,  James  Alexander  Doty, 
Joseph  McGrorty,  Samuel  Simpson  Gregg,  Budley  Moore,  Thomas 
Bronsdon  Collins,  Marcus  Spurr,  and  William  H.  Hutchinson, 
who  are  now  charged  before  me,  upon  complaints  made  under  oath 
before  me  under  the  provisions  of  uie  Treaty  between  Her  Majesty 
the  Queen  and  the  United  States  of  America,  ^d  our  Statutes  in 
that  behalf  made,  with  having  committed,  within  the  jurisdiction  of 
the  United  States  of  America,  the  foUowing  crime  mentioned  in  the 
Treaty  between  Her  Majesty  the  Queen  and  the  United  States  of 
Amenca,  to  wit  : — For  that  they,  the  sîdd  Samuel  Eugène  Lackey, 
Squire  Tumer  Teavis,  Alamanda  Pope  Bruce,  Charles  Moore 
Swager,  George  Scott,  Bennett  H.  Young,  Caleb  McDowall 
"Wallace,  James  Alexander  Doty,  Joseph  McGrorty,  Samuel  Simp- 
son Gregg,  Dudley  Moore,  Thomas  Bronsdon  Collins,  Marcus 
Spurr,  and  WiUiam  H.  Hutchinson,  on  the  nmeteenÂ  day  of 
October  laat  paat,  at  the  town  of  St.  Albansy  in  the  State  of  Ver- 
mont,  one  of  the  United  States  of  America,  being  tiien  and  there 
armed  with  certain  oflinsive  weapons  and  instruments,  to  wit: 
pistols  commonly  kiiowij  and  called  revolvers,  loaâed  with  powder 
and  balls  and  capipd,  in  and  upon  one  Cyrus  Newton  Bishop 
feloniously  did  make  an  assault,  ani  him  the  said^Cyrus  Newton 
Bishop  m  bodily  fear  ànd  in  danger  of  his  life  then  and  thore 
feloniously  did  put,  and  a  certain  sum  of  money,  ^  wit  :  to  the 
amoufl  of  seventy  thousand  dollars  current  money  of  the  United 
States  of  America,  and  of  the  value  of  seventy  thousand  dollars 
current  xponey  aforesaid,  of  the  moneys  and  property  of  the  bank 
of  SilAlbans,  a  body  corporate,  constitated  and  recognized  by  the 
laws  df  the  said  State  of  Vermont,  and  the  said  United  States  of 
America,  frQp.the  person  and  oustody  and  posseuion,aûd  aœpmst^he 
will,  of  Âe  lÉid  Cjnrus  Newton  Bishop,  then  alii  there  f^omoualy 
wid  violently  did  Heal,  take,  ahd~carry  àwajr,  agaînst  tfce  form  of 
the  Statutes  of  the  said  State  of  Vermont,  m  such  case  made  and 


;'k    ■ 


% 


r*"Wr>î- 


t-*-^  4  r^^f^yr 


^^f  , 


ns,  Marcus 


69 

in  thé  aftehioon  of  thatTay  I  saw^i?  I' *^^^ 

in  St.  Albans  on  that  (1^°  f '^w^C^^f  f  ^ï*^;î»««°  ti^em 
were  on  horaeback,  and  4ere  ?rlÏÏ  »•♦?•**?  ,*^®  **'^«*-  T^ey 
ciyilians'dress.    l8hSX«T.\^'*^  ^'I^^'    Theywereii 

rode  off  together  t^S'tO  Sft^*?r  î^-  ^«^ 
rapidly.    fshould  iuSe  Zt  *w'    ^^®^^<^<*  «ot  go  off  veiy 

Sf^^whom  I  afterwardfl  leSl^Tu^w  Bd^S^^'^^  *^« 
tbe  bank,  was  one  of  tha  mr^l  tu  j  ^^'  ■°'"™«ey,  cashier  of 
that  rode  off  together  m/S?!  ^  ^««^  shots  fired  Êy  the  party 
sition  havingS  ré'a?over  bT*?'*^-  ^^Z  ^^oing  §ï^ 
charged,  the^^depone^t  decW  thlAr''"'^  °^  *^"  prisoSers^ 
and  hath  signed  ^**  *^®  ^^  ^ontains  the  trulh, 

«r?.  taken,  and  aoknowledgedr'™''  ARMINGTON. 
Wore  me,  on  the  day,  month, 

and  year,  and  at  the  place,  hère- r 
mbefore  mentoned.  J 

(Signed)        Chas.  J.  CouKsoL,  J.S.P. 

preÏLf::fti^n^t"eÏÏ^^  "^^^^  "»^  "^^  -  the 

hâve  any  qneS  to  nït  A"T"'  ^^'^  *™  «*l^«d  ^f  they 
declaredfbîX  KerT^L  *H^T°®°*''  *°d  *%  havinj 
enéen.ef£;.lrr^^  «»ey  had,  the  iuo^f 

St.*Lïans  bank      I  shouW  l.fZ**?**''^''^^  \^^^  »^^e  tbi 

pufJthŒnrar  rd^âSi  ^- ^-^•o-  to 
trama,  of  tle  said  «ri»,™,^  .R  """«f  **•"  ">»*  m  the 
«..  tratt,  MÎh^'iil^'"'"'  """  ««!»■»»*  apures  it  ooolains 


féar,  and  at  the^farog.  twe^ 
fore  mentimio<l 


*inbefore  mentioned. 

•   ^  (Signed)       Chas.  J.  ComBùï,  J.8.P.. 


f,'      V 


î#j*' 


ff       .|' 


fî«d 


£Mii!^!âa^i4,'(»4/.,<. '.  ~  > 


A^^-.    '  f%f>-' 


60 


i!r  •' 


,1    I 


ï  m 


I     ' 


./• 


PROVINOB  OP  CANADA,  ) 
Dùtrict  nf  Mm^eal.        J 


POLICE  COURT. 


The  exaijamahon  of  Marfm  WdU  BeardtUy,  of  ihe  town  of 
St.  Albans,  m  the  State  offVermoiit,  ône  of  the  United  States  of 
Amener,  now  in  the  city  of  (Montréal,  tàken  on  oath  this  elev<enth 
day  of  November,  in  the  year  of  our  liord  one  thousand  eieht 
hundred  and  sixtv-four,  at  the  PoUce  (Jffice  m  the  Court-hotue, 
w  the  citj  of  Montréal,  in  the  District  of  Montréal  aforesaid, 
oefore  the  undereigned  Judge  of  the   Sessions  of  the  Peace 
in  ^d  for  the  said  oity  of  Montréal,  in  the  présence  and  hearing 
of  San^el  Eugène  Lackey,   Squire  Tumer  Teavis,  Alamanda 
Pope    Bruce,   Charles  Moore   Swager,  George    Scott,  Bennett 
H.  Yoimg,  Caleh  MoDowaU  Wallace,  James  Alexander  Doty, 
Joseph  McGrorty,  Samuel  Simpson  Gregg,  Dudley  Moore,  Thomas 
Bronsdon  Collins,  Marcus  Spurr,  and  William  H.  Hutchinson, 
who  are  now  charged  before  me,  upon  complaints  made  under  oath 
before  me  under  theprovis^ops  of  the  Treaty  between  Her  Majesty 
the  Queen  and  the  United  States  of  America,  and  our  Statutes  m 
that  behalf  made,  with  having  committed,  within  the  jurisdiction  of 
^e  United  States  of  America,  the  following  crime  mentioned  in  the 
Treaty  between  Her  Majesty  the"  Queen  and  the  United  States  of 
Amenca,  to  wit  :— For  that  they,  the  said  Samuel  Eugène  Lackey, 
Squire  Tumer  Teavis,  Alamanda  Pope  Bruce,  Charles  Moore 
Svrager,   George   Scott,  Bennett    H.   Young,  Caleb  McDowaîl 
Wallace,  James  Alexander  Do^,  Joseph  McGrorty,  Samuel  Simp- 
«)n  Gregg,  Dudley  Moore,  Thomas  Bronsdon  Collins,  Marcus 
Spurr,  and  William  H.  Hutchinson,  on  the  nineteenth  day  of 
October  hut  past,  at  the  town  of  St.  Albans,  in  the  State  of  Ver- 
mont,  one  of  the  United  States  of  America,  being  then  and  there 
armed  with  certain  offensive  weapons  and  instruments,  to  iriti , 
pistols  oommonly  known  and  called  revolvers,  loaded  with  powder 
«nd  balls  aqd  capped,  in  and  upon  one  Cyrus  Newton  Bishop 
feloraously  did  make  an  assault,  and  him  the  said  Cyrus  Newton 
Bishop  in  bodily  fear  and  m  danger  of  his  life  then  and  there 
feloniously  did  put,  and  a  certam  sum  of  money,  to  wit:  to  the 
amount  of  seventy  thousand  dollars  current  ^money  of  the  United 
States  of  America,  and  of  the  value  of  sevenly  thoosaud  dollars 
current  money  aforesaid,  of  the  moneys  and  property  of  the  bank 
of  St.  Albans,  a  body  oorporate,  oonstituted  and  recognizod  ty  the 
laws  of  the  said  State  of  Vermont,  and  the  said  United  States  of 
Ajnerica,  from  the  person  and  custodv  and  possession,  and  agaiost  the 
will,  of  the  said  Cyrus  Newton  Bishop,  t^en  and  there  fâoniously 
,md  violently  didfltgal,  taA>e,  aad  CMiy  awàay  against  tb^^^fegia^^ 
Ahe  Statutes  of  the  said  State  of  Vermon^  in  suoh  oaw  made  and 


■■,_:i.o--j*^s;^f.^T-f;: 


provided,  and  against  thepeace  and  disnitv  of  thn  «nî^  «+«*. 
fee  déponent,  Marcus  AlU  Beard^l^Xn  ^s  oTth  S*- 
On  the  ^eteenth  day  of  October  laat  pastf  I  i^sidU  T%' 
Albans,  and  was  and  etill  am  the  cashier  of  th«  FmnVi^  A  ^t 
bank  Onthatdaj,  in  %  afl^n^^Mlerl ^ ^^breaTS 
ae  village,  and  a  number  of  armed  men  appeared  Ce  '  tL^ 
that  I  saw  were  sbimgers.  J^en  I  first  saw  some  of  ftesemeÏÏ 
was  m  the  said  bank.    The  men  I  saw  belon«^„  f«  1-  7 

lin  v^ounty  oanK.  Ue  wore  whiskera  then  wbîoh  ï,a  !,«=  «  a  ^^ 
andie  J»ad  no  spectecles  on  then^he  ha^  now  AU  T .'  «TT' 
as  to  what  took  place  outside  of  the  FwSi  rLt^o  i,  T,'***® 
by  report  onJy.  Whi^a,  Vhen  h^S  0"^^ ^th^^^^ 
enquured  from  me  what  we  were  navim^  f^r  ««m     t  i 

Mr.  Aramgton,  a  merehant  "of  the  rillaêe     Th.™^»  ?       ' 

Swom,  taken,  and  acknowledged>|        ^'  ^^  ^^^SLEY. 

before  me,  on  the  day,  month,  I  # 

and  year,  and  at  the  place,  her©- f  ' 

mbefore  mentioned.  I 

'      .    ^     /         Chas.  J.  Coursoi,  J.S.P. 
^°  J*"»»  I  '^^  i'i»»«««d  on  tk.t  day  m«  whiAe™  .,  I 


» 


\ 


Ê- 


■1    / 


ai 


M-, 


■*,  ,s^ 


1 

=1 

m 

, 

1 

1 

~i 

« 


.tjtf  "i)fH.*^».j'*-^,iWyv),S'4,.    **i      o 


'  H^'- 


IIP'T. 


•  \ 


^Vn 


if^l 


62 


'!!:1j:^ 


^1  ^'[0:1: 


He  had  a  dark  colored  coat  oh,  bat  I  cannot  say  wh^Ht^ 
black  or  blue.    It  was  radier  ample  in  sizè.    He  had  M  wWsk^^ 

ffiiî^  ï^'?!?^"*  shavedornot.  My motive  in speiingb 
W  î.i  -f^^  a«  I  did,  was  that  I  felt  sure  thlt  he  was  the  man  thS 
had^committed  tibe  act,  and  I  felt  disposed  to  teU  him  so.  It  wL 
probably  not  neôesaarv-to  tell  him  that  it  was  a  brutal  act  ;  but  I 

hv  71    T   ^^  S^iT^r  \'  ^^^  ^^'^^^^    I  ^  admitted  there 
ll^  rr     r^''^^*^J^  the  gaoler.    I  Mnk  he  was  standing 
jery  near  when  I  gaid  thw  to  the  prisoner  ;  ^at  is  my  impresZi 
My  fnend,  Mr.  Saxe  wi«  beside  n,e  too.    I  was  notafSuoS: 
cerned  for  my  personal  safety  for  what  I  said  there  |        " 

On  question  by  theJudge.-l  had  never  seen  Hutchinsdn  before 
^JgJy  knowledge  The  prisoners'  counsel  déclare^  hiving  no 
farther  questions  to  put  to  the  déponent,  and  this  depositrl'liavinff- 
been  read  m  the  présence  bf  the  said  prisoners,  the  "déponent 
déclares  it  contams  the  truth,  and  ha%.simed  ."«ponem 

bwom,  taken,  and  acknowledgédV 

>eforo  me,  on  the  day,  month,  I 
/and  year,  uid  at  tiie  place, hère-  f 

inbefore  lïientioned.  J  | 

(Signed)        Chas.  J.  CouÎsol,  J.S.P. 


PROVINOB  OP  CANADA,  > 
District  0/ Montréal.        \ 


I 


POLICÉ  COURT. 


The  exammafaon  of  CharUs  Alezander  Marvin,  of  the  town  of 
St.  Albana,  m  the  State  of  Vermont,  one  of  the  United  sKof 
Amenca,  merchaat's  clerk,  now  in  the  city%f  Montréal,  ÏÏen  on 

Co^Si;?  •    ^r^"!^  and  sixty-four,  at  thé  PoKce  Office  in  the 
«fo^^S^f^  the  aty  of  Montréal,  in  the  District  of  MontreiJ 
aforesaid,  before  the  undemgned  Judge  of  the  Sessions  of  X 
Peace  m  and  for  the  said  dty  of  Montréal,  -^  the  présence  ' 
and  heanng  of  Samuei  Buçene'^Lackey,  Squi^e^Tumer^S 
Alamanda  Pope  Bruce,  Charles  Moore  Sww,  George  Scott  bS 

B^Él^'^rn^'S^'''^^^^''  ^^'  Dudley  Moor^,  ThoS 
Sr^n     ?"^J  ^'T""  ^P'^'  «"^  wlam  H.ktchiiion,  who 

before  me  un^er   the  pw«rofX^2^be^^^ 


/^^--•iiAr      V      -v)^ 


S 


"Jïï 


■  ■  ,    '         63 
jjesty"  the  Queen,  and  the   tlnitSa   «s^o*...,  „i«   a 

^  «id  tbe  United  Xtes  S  im«  Jl^^  f  ''  -f  "J^^  *^«  ^««e'»; 
the:^d  Samuel  iugenel^^^^  *% 

manda  Pope  Bruce,  cf  arles  M^rJsS^  p^^^^'o  ^**^«'  ^^a- 

rf  Amène.,  be,ng  Ihen  and  thefe-'armed  S  cS„  „»?" 
Mve-ireaporia  and  instruments  towit-  ™.iM.«  ^«ain  offen-  , 

called  reVolvère,  loadeTS  wwdt  ,£d  h^iu  Tf"^'  ""ï"?  ""ï 
upon  one  Cjnis  Newton  KalnKl-     i  ^  ""^  "«PI»'",  m  »nd 

mjbrother's  store  onuS^LjjtZ.l^î^K''  ^'  '^f  ^^  ^ 
o'clock  in  the  afternoon  of^Jrdaf  *^rfi«f^'^^  T*  *^ 
the  prisoner,  Doty,  on  a  blaS  horse:  fc^^\  C'ïh.Vr  .^*? 

twenty  minZ  afCT  fiirl!J^^..**'S«ther  on  horseback  about 

fireat^ha8te,^d^^Ld  aU^  1T''  ^'^  ""'"^'^  ^  ^'  ^ 
-aa^e  part;.    T  hSrlf^^g^  AlTg^  ^^^r  and 


aa  one  party     T  heâ^  >  »»»^Wef ^ûtTflmlï  iT  luf  !!i!l  "^ 


/ 


'i 


^ 


1,  'J'îâ 


t®«»'.tif*à*!4i^jfe! %«,,.. i',  V>*  , 


,(     r 


Q 


64 


M 


merely  asked  him  Ite  direct  (question,  "  When  ^ 

?'  don  Creekon  thelôj)po8ite  side  of  the  street,  w^ 
,  "  suing  partjHP'  and  1^  answered,  "  Q&min^to  su  " 

"  aide  of  ihe  Creek.'*^  Sheldoi^  Crèek  mbovA 
.  Jt/Albaâ*  men  llàid  «  yinïer^l^  our\  ^ 

ftrred  to  a  party  of  ÉÉf.  lâJlbaias'^^l^l^  puwSpgktÊé^antaed  pftrty 


I  havs' spoIÊen  ôf.    Thst^flined  '^iiH|f|ihat 
ail  strangers  to  mel.  JWÊf  were  dréSSfd 
of  thei%  diffèring  '  Ikan  éMh!  other^â 
hamg  Ib^  ns^  ov^r  m  tw  presencérti 
^'   '*"  pnOTti^^lares  the  «iiùe  contains  ._, 

ledged^ 
^j^  ,  month,  I 
ttepiàce, hère-  f      •  ,     '       -'s; 

m.  }  ^■-.■. 

Chas.  J.  CoÙksol,  J.S.R^é'; 

3'>ï|i*  I^Éregodng  déposition  having  beén  mad^^d  read  in  the 

f^Tpresenoeandhearing  of  the'i^iid  prisoners,  theylÉp  àsked  if  they 

'^Vve  any  questions  to  put  to  tiie  déponent;  ^d  they  having 

*^clared,  bjr  Mr.  Kejr,  Iheir  counsel,  that  they  hà|^  the  followmg. 

^.ence  is  taken  on  cross-examination  :  *•;  > 

._  saw  one  inan  trying  to  fire  upon  the  armed  party.    Th© 

prisoners'  counsel  deplares  having  no  further  quesifcns  to  put  *to 

the  déponent  ;  and[  this  déposition  having  been  read  in  the  présence 

of  the  said  prisoners^  the  déponent  d«clare8^it  to  contain  the  truth, 

and  h,ath  si^ed 

,  '    ,       •  ÇHAS.  A.  MARVIN. 

S^oiji,  taken,  and  aÀknowledged^         ^ 
beifore  me,  on  thp  day,  month,  I 
and  year,  and  at  the  place,  heré- ["      ".      " 
inbefore  mentioned.  J 

■     '  -  %     ,   Chas.  J.  Coursol,  J.S.P. 

Jt- 

PROVINOB  OP  CANADA, 
DUtriet  a/  Hfontrtal, 


Jià 


POLICE  COURT. 


The  examination  of  JETenry  George  ISdton,  JEsqï 
St.  Albans,  in  the  State  of  Vermont,  one  of  the 
America,  Counsellor-at-law,  noW  in'tibie  city  df 
oath  thJé  ^i#|^aj  of  Novembor,  in  thf 
thousand  eiJMMtndred  and  sixty-fi^or,  al 
Couijt-hottBflMlHpft  ^Igr^j^  lyjfontyeal,  in  < 
afor^said,  before  the  i^dersigned'  Jadge 


î;the  town  of  i 
States  bf 
i^^en  on 
Lord  oi^e 
|e  Qffice  in  tlïe 

Besçions.of  tiie 


,< 


65      " 

Peace  m  and  for  the  said*  city  of  Montuaftl    în  t\.^  ^  '■ 

4«Ki  hearing  of  Samuel  Eugène  irS'^'Tnîf^^'^''^"-'^ 
Alamanda  î»ape  Bruce;  Chwles^orirl*  ^Tl  ^^^  ^1*^» 
Bennett  H.  Vormg,  Ca^eb  Sw^wi^-Ty  ^''^  ^"^^ 

Scott,  Bennett  H.  Yonni,  Caleb  MoDomll  w.!!.».  T  '  ^'8* 
jnd„  D^,  Joseph  Mc^GrortJ,  aSa^^a^™'!,:^"- 

and  there  felomousl/did  wTinn^TrtLS  o^*^/^  ^  ^""^ 
doiroenOKT^J^XJW^  "f  *f  »"*  State,    feo 

«*  «7  .^  .p».  ion.  .^ht'oSt^aCeL^S;^^^^ 


m^ 


M-tîç' 


%ï^ 


W»*- 


v> 


Vk^ 


*-  — 


•'■#- 


1, 

1 


^■ 


66 


11'  ?         6> 


w  on  thesame  Street,  and  about  midwaj  between  ^he  Firat  NationaT" 
bank  and  the  St.  Albans  bank.    I  am  acquainted  with  the  laws  of 
Vermçnt,  and  state  that  the  volum»  now  produced  contains  the 
^generaJ  statutes  m  force  in  Vennont  ;  and  I  say  that  the  sections  22. 
J4,  and  26,  phapter  112  of  said  statutes,  and  sections  86  and  87  of 
chapter  16,and  sections  1, 6, and  9  of  chapterSl  of  thè  said  statutes 
wel-e  on  and  pnor  to  the  mneteenth  day  of  October  last,  and  are 
now  mforce  m  the  State  oT  Vennont,  and  fonn  part  ofits  gênerai 
laws.    I  am  acquauited  with  the  seal  of  saia  State,  and  the  sima- 
tures  of  the  govemor  and  secretaiy  of  state.     The  seal  a&œd 
to  the  certificate  written  upon  the  leaf  between  page  790  and  the 
firet  i>agè  of  the  indexof  said  volume,  is  the  seal  of  the  said  State 
Ihe  signature  J.  «regoir  Smith,  subscribed  to  the  said  certiEcate. 
and  the  signature^  G.  W.  BaUej,  jun.,  also.  thereto  subscribed,  are 
reroectivdy  thé  sigoatures  of  the  governor  and  secretaiy  of  stato 
of  the  sud  State  of  Vennont.    I  also  say  that  the  seal  affixed  to 
the  (Berùficate  upon  the  hwt  nage  of  th^  copies  of  comphûnt  and 
wamint  made  and  issued  in  Vermont,  and  produced  and  filed  ve*. 
terday  18  tiie  spal  of  the  said  State,  and  the  said  signature  of  J. 
Grôgonr  Simè,  and  G.  W.  BaUev,  jun.,  therete  subsc^ed,  are 
respectively  the  signatures  of. the  Governor  and  Secrotary  of  State 
of  the  said  State.    I  know  that  robbery  is  a  crime  by  the  h^ws  of 
tiie  -State  of  Vermont.    I  am  one  of  the  légal  advisere  of  the  St. 
Albans  bank.    I  know  that  this  bank  bas  been  canyinc  on  busir 
ness  as  bankmg  corporation  at  St.  Albana,  under  the  laws  o£ 
Vermont  for  s«yeral  years  past,  lûid  was  so  canying  on  busmess* 
on  the  mneteenth  day  of  October  last.    I  compa^ed&e  copies  of 
complamt  and  wan-ant  before  referred  to,  with  the  Siginal  com- 
ïJaink  and  wamnt  made  and  issued  at  St.  Albans,  in  thT  State 
of  Vermont,  and  déclare  them  to  be  trae  and  exact  copies  of  the 
said  onguwk  resiiectavely  and  they  are  in  thé  fonn  prescribed  by    ' 
Ihe  laws  of  the  said  State  of  Vemont.    The  crime  disclosed  in  the 
o  said  complamt,  and  also  m  the  commencement  of  this  my  exami^ 

SÎÎT'  f^"  """^T  "i  "^^^^7  according  to  tlie  laws  of  the 
btate  of  Vennont,  ^and  atfcordmg  to  the  laws  of  the  United 
States  of  Amenca.  Accordmg  to  the  laws  of  the  State  df 
VwTOont,  «le  duty  ^  the  town  grand  juror  is  to  lodg  complaint 
befoife  justices  of  tiie  ceace,  that  is  to  say,  withhthe  toL  to 
M^ich  he  is  elected.  1  know  that  Mr.  Ciellis  P.  sjord,  who 
lodged  the  çomplaint  refen-ed  to,  was  on  the  nineteenth  and  twen- 
taeth  days  of  October  laat,  a  grand  juror,  witl^  the  said  town  of 
St.  Albans.    No  denositions  are  taken  according  to'theSws  of 

wraed  lyoïrtireTHronnaSon  oT  the  grand  juror.    By  the  hws  of 
Vennont,  upon  the  last  mentioned  days,  a  justice  of  the  peace  had 


/ 


V 


A'  . 


/ 


/ 


67 


warrante  of  apprçhensioJ/in  SrS^T  K^  k^/'  "^^^^  issue 

a/d  I  havè  Bigned  ^  '^T*^  ^  to-morrow  momng  at  ten  o'clock, 
Swo™,taken,«ndacknUdged,^'  «'  ^^  EDSOl^, 

before  me,  on  th^^Jr,  moSth 

and   year,  and  aT^ie  placée» 

heriinbefoite  méntioried.  J 

(Signed)        TCflAS» J.  douRsoL,  J.S.P 

Jiid«oftheSe8donnf&e2l^^an^TP^^^  %^. 

and1,eing  re^wornT  tS  J^rnce  n^^^^^       citjr  of  MoSreal 
deposeth  and  saithi-oC  C«  ^1     *!  P""^"®"  «>  «^^a^-ged 

,    ;;  dent,  Directoi^Tand  âmpi^  tf  the  ZTr^.  *^/,>«^- 
,    "An  Act  to  ext«iid  thA  «aT-  j    tû«,-B«ok  of  St.  Albana:" 

"limited  period  2  Ac?  £»  ir^^S''^^^^»  ^  «^^^^  for  a 
"  tors,  and'corpaj^  o^L  Rtikors^Ai?'  ?'^'^^/"*'  ^^^«■ 
«  to  extend  the  Sïïter  3  ^Z.^  fk  "l^*^  '  *«<*  "  ^n  Act 
"  of  St.  Albans;»  KodIÏs  of  thTS'  *^  T*H  «*°«'^  «^  **»«  ««^k 
the  State  of  Veni^f  ?i^!       *r  ^®''®?^  ^^  «^  «»e  Législature  of 

copies  respecMri^  fte  s^aînf  îî^'*^/^*^^^^        ^  the  said 
the^ignarresTG'îeX^^^^^^^  «d 

scnbed  to  the  sLid  *.prHfl««f«»      '  ^    ,  '  "'•  -^«^ej,  jun.,  sub- 

The,  acte  of  whipk  k^^^I  .    °*^  *"®  ^<*  State  re^pectivelv 

Ste^of  Ve3^  «t^!»  were  in  filnX 

aresojandthebâkwal  onfK^  ^  ^^^  of  October  last,  and  stiU 
u»«  on'busC,^^^^^^  is  organized  and  carrjr- 

«^Acte.%e  vi««e,^dS^nA  S^*^  of  Vermont,  mider  tfie 
Fttbin  Ae  y^^^l^^^lf^^"^,  ï^fo»^  referred  to,  are 
a«ed  in  the  State^of  Vprt^n*  *  x?*®^^^  America,  and  are  atu- 

'^f  the  prisoŒ  cCld  AJdL^'''l?*1  ""^"^  ^  the  présence 
tain  the  tri^feŒSinï^    ^"^°*  ^*°'*^«  th«  ««^e  *«  oon. 
Jworn^t^Eiw.Tl^,  .  H.G.EDSON. 


Beïoro  nu 
and  year,' 
bereinbef 
(Sij 


]be  dav,  month, 
and   at  Ûie  place 
B  mentioned. 
W)  Chas.  J. 


OURSOL.  J.^.p 


'7 


V   . 


i..  i-^.t 


»Sfe". 


«8 


I' 


l 'îi 


h  I 


j  I 


'% 


î^^-w^o.  — r"«>tion  having  been  made  and  read  iJi  the  nre- 
'f>mJZ^'  ®*™^  ï  .  piBonert  ahove  named,  thev  are  aflked 
ÎLT^  Î*!!  wiy  questaoM'to  pht  to  tbe  déponent  ;  and  iey  ha^ 


J 


it  carried*  on  business  on  the 


Muraying^i 
nineteenth 


aild  vhere 
._  —  „„  ^^^  «iwv^'cuth  pf  October  laat.     I 

çompared  copies  of  the  complaint  md  wafitat  made  and  issned 
m  tte  State  of  Vennont,  and  filid  in  thXprçceedi^r  UmS 
not  State  when  I  so  compared  the  said  thirg/tAd  comSririt  y^h 
the.  onginal  thereof.  ïhe  said  copies  of  complaint  aiSlrnuront 
are  m  the  hand,.riting  of  a  man  by  the  «Le  of  TaJ^^f 
S^k'  I  ^0  not  recognize  the  handwriting  in  whib^  the 
name  l^ilham  H.  ^utehinson  îû  the  warrant  and  £  the  comnliSt 
ap^a«;  OJe  nameWilliain  M  Hutehù^onappearedSVeTrS 
w^t  and  comphimt  when  I  compared  it  with  the  copies.  Wa 
WBual  in  our  légal  proceedintrs  before  maaî«f«.t!;<.  *«*L7;_*:" 
w0Hs  in  "the  same 

S&ÎS  Ï2*  fS^'J"  ^t"»»»».  I  canVactise Wore  Z 
(^itautand  Distnct  Court  of  the  United  States  Stting  in  the  Sfa^ 

Supen^Court  sittane  at  Washington.  The  United  Sos^ute^ 
at  Wî.ubl«hed  Ijâttle  &  Irown  at  Boston,  «e%i^  „ 
jrathenbcm^aJIthe  %tsof  the  United  States  withSirC 

âeîJ'^.1â-f**S^i^*^-    If^otsayhlwmiïyî^fuS^ 
there  are  ;  I  «  abôul  jjeven.    fïm  acq'uainted  m&  theîw 
id  Sta^  «non  m  subject  of  treason,  as  most  lawvers 
ien^  readmg.    The  définition  of  tr^as^gainst  flie 
.8 would he  theleyymg  of  waraf»infl^ta,oradliering 
^j.  or  ^ymg  them  aid  or  mùfort  within  the  United 

^ZZl  T  r^^^'  ^  ^^  ^^^  Qwin^llfigiâïR»  to  the  United 
8te^.  I  âm  Jotprenared  te  swear^at  Sie  UmM^Stadb  dolge^ 
reddmg  ni  the  Con&nù^  §»:^nd  wïio  h^ST^^ 

tebanab  of  the  caimy|^decide.  ï  haïe  heard  of  an  Aot  ffi 
Ca^resa  of  the  Ùnit»te#rf  the  nineteepife  of  JuS,1«e^ou! 

lit  liJ'^^S.^îPf*]^"'-  Ila»ow4ta  civil  war  ha-  been 
wgng  befejreei^  the  Umted  States  and  the  8<HMjled  Confederatï 
States  for  the  last  threeyears.  v.  "i«w«n« 

r,^?^!.?"?^"^"'  ^'^f  .^^^^^^  ^^g  PO  further  gnestionato 
^nt  to  dio  dopnetrt,imd  iiris-  dep^rdfl%<iyîng  bIs'^^^ 


«f  the 
are,  firoi 
United 
tethéir 
States  or 


%. 


i?ÏW'|?'.W*^^»^V;VrS'>> 


^plgl^  POLICE  court; 


69 
Srr  hïSd^eT^'**"'*'^  cleponentdecUres  U  contaû.  the 

Sirort,  taken,  and  acknowfedged,^  ^*  ^'  ^^S^^- 

beftirftine,  on  the  day,  month,  1 
ând  year,  afld  at  the  place  7 
nweiabefore  mentiohed.  I 

(Signed)         Chas.  J.  Coursol,  J.8.P. 

PROyiNOB  OP  OAjrADA,  ; 
J>irtrieto/Mi»ùrtal.        i 

thepresSald  he^/of  S^rfi^t^'  *^*  "?^  f^^^'^î  Montréal,  ia 
SK^before^nf  T    ^®^^^®.  "'*'  ^.ï»"  complainte  made  - 

^%^t:  Tue^tdihe'srsf tf;^  î^h  î^*^'^ 

the  jurisdiction  of  the  UnLT  Sfl*       i**/^  conunitted,  withm 


iim  the 


Aen  and  thère  feloniôus^  w  î  5     "*1  î"  ^«^"^  °*  ^'^  ^i^ 
irrt.  to  the  amount  of  seventj  thojjpand  dolhira  current^;  % 


ll'lûL 


liWi 


!t 


'îi 


%    't 


70 

senceof  wbslc^  «id  he  Lad  no  spectacles  on  atâat^eï^t^" 

présence  in  regard  rf  theprice  oftZ    M.T*5*f*  '^^  "»  "»/ 

ofthebank.h&n.râ£Xl^M'i^ 

the  money  article.    I  did  sn     4a  ri  .    t^'  «pd  asked  me  to  jread 

was  unamed  at  that  <£e     l^tïZl'^}^T>  ««tohinson 

vidualfy  in  the  ^^^!ii^:J^^^^  ^^^ 

uj  civifian's  dress,  and  so  also  were  Se  S^     Hutchinson  was 

contaiiS  the  tmth,  Wà  ^^^.eT  '^"'^  *^^  ^*  ^""^ 

Swora,  taken,  and  acknowledgedA  JAMES  1SAXE. 

before  me,  on  the  daj,  month,  (     '  |     ; 

and.yeâr,  and    at  the  place  T  ^  ^ 

he/embefore  menlâoned.  J  1    '     A  / 

(Signod)  CHA8.J.  <^uRS0L,J.S.P.^;     ''  , 

croswxaminatir:  MrimwL^l^I^i^"? if^1S"««  "  *»ken  in 
moustache.    I  tldkÏÏSZîn^,?**  H  BÇ«tçhinson  bad  a 

-^r^r^rtmjrm  me.  ^^^^^ÇTe .^/L"^^ 


<  / 


~H3f 


/ 


/,/ 


p^i^FTTv' 


'JfV     '/  «r/-     '    1} 


,f;^,^'v, 


«on  ifl,  tfaat  he  haï  on  «  blaok  hhnà  «mw«  fcu  u  *      ▼.         .  ' 
veiy  bright  day.     Thero  WM?SJiJlS  •    *u      *    ^'  ^^  «>'  » 

be  poritive  Aat  I  «,w  bim  aCîeS^ïe  Tant  X«  /  ÎT'' 
I  nw  faim  afterwardi,  was  attbe  «M  --^^1  «-vlS  i"*  'T® 
*o  point  eut  the  «an  who «aUed  wSK^toLii'^  AH  tî^^*^^ 

purs  ''^X^lïtt^:^^,^^'^,  '» 

the  Lth,  and  hath  ^e5     "'"'*^'    ^"'"jAMeT  Ï.TS^ 
8wo™,taken,andacknowledged,^  «^AMES  SAXE. 

befim»  me,  on  the  day,  month,  I 

M»d  year,  and  at  the 'place  f 

hereinbefore  raentioned.   ,        J    ' 

(Si^gnéd)  Chas.  J.  Coursol,  J.S.P. 

4he!mdemgn5.^aCriïS  T^'  ^P^'T  ^'«^  '«'«r^ 
^Mr.SS^.MMrâi^^vHS^*;   rdidsoforthe.benefit 
déposition,  ^.î^;:^****^  correetion  ï  hâve  to  make  m  my 

feet long, i£dl hS Zn  wi^i!^  ST*'!.*^. ^  ^®  ^»n<lwd     . 
J  «wJd  iM>t  aee  ^à^^MKi  Sn^    **  *^*  *°^  "^  *^«  '^"'• 

i»ye  iSned    ■    **'**^  ''^P'^^'Sf.  «»»  «ammation  U  olosed,  and  I 
^wo^^  JAMES  8AX1. 

«W8  me,  OR  tlie  day,  mpnth,  ^ 


JietembemM  mentiooedi 
«pîfjned)       y  Chas;  J. 


JOCMBOL,  J.S.P. 


;/.*!, 'i» 


l'I 


■ff-- 


mi 


■10  ■■ 
•m  ■■ 


72 


«Éft^ 


POLICE  COURT. 


PROVINCE  QF  CANADA,  i» 
Dittriet  of  Montrtal.        \ 

,thi8^1ev;nTW5^ove2be^  f*cityof  Montréal  tafcen  on  oath 

Eugène  Uck^/sS^lr^  ^V""^^ f°^  ^^^gof  Samuel 
offriez  MoorrSwS?  S^!I  l^^tK^"^"^^^  ^«P«  ^««^ 

SamuelSimpson  G^^r^i^t    M^^    S^*^'  ^*P^  McGrortr 
before  nw,  S  clriÏÏr«?;i  Hutphmson,  who  are  now  charged» 

tnited  States  of  AmeLa*rroS'8&^  *S  ^^.T'  "*<*  *^^ 

TerS,ltlt^^^^^^^^ 

Scott,  Bennett  H.  YtS^efcaieb  Mowf w  n  ^''T"'  ^^«^«« 

ander  Doty,  Joseph  McSrortr  W  7^  ^*^^**'*'  ''^*°'^  ^^e^- 

Hatchinson,  on  the  SeeSfc  Z  5^^^"'  *"'*  ^»«"»  ^^ 
of  St.  AlbaM,  in  Zstaté"^  fc  Z'*^^"  ^î  ^'^*'  **  "»  *o^ 
of  America,  be L  Aent^dl«!!      "*J  If.^^  *^"  ^^  States  ' 

perty  of  Uie  bant  nf  <5f  a  ik     "^  aiopesaid,  of  the  mofaero  «nd  pro- 

United  StaJJ  America  fm^iî;  ÏSj?^  ^^fiont,  and  the  aaid 
8eflS8ion,and  i^^t^'y\^^^L^\'^^  Çoatody, ,md  pos- 

cai-i7  away.  Agaîn^ra.  j^S»^^  S^ S?^  T^^^ 


\ 


n  '<: 


••.'■* 


79 

onho««baok,andirLsref^^^^^^^^  Thej  were 

Sert,  and  Aey  iJeofftog^LrtST^ 
the  Street  f  ey ,een.ed  toLin  a  hï^S  JÎ^aît''    SI?-"  "^ 
^      Young  Bhot  at  me  with  a  revolver     fo?-ÎL     ÎL  .^hepnsoner 
I  stepped  out  of  my  photoSaàWn  "f'^*^®JPfrty  shootbg,  and 

iety^ujn.o//'Sidw  tot^^^^^^^^  ^ar'^^.:??/;!'" 

..      oui  ;  let  É^eiy  one  of  vou  walt 3 Tî!  ?u     .^  ^^,^^  ^*^<*     ^ome 
orderedl^îeytolhC^^^,;"^^^^^  Young  thén 

>ckey  threw  a  botter  S„eSSirllf^^^  ^""^S- 

^-;|ign  ûver  tte  door  of  the  SS?*^  ^         gaas  against  the 
§  Wn^up  ^e  Street,  thew  kl^£:^,  ?""«  T^  î^^"'  "  W^ 

i^e«,  ^  the  e^tception  of  Young,  whom  i  had  see^tWe 

c<«tai»ï;;;iïil^«^^^^^     ^^lar^  that  L  same 

»'«#0jj,takenVWaekÀowMged,Y    ^^^^^^  ^GROSS. 
before  ma^^to  Ae  day,  month,  (      , 
JJJ^.JW,  and  at   fl»  plaœ  f  ' 

''W'^w^ro  mentioned.      .     J 

*'  i  ''^    ^^*K^       CtaAS.  j.  Cm 

'«"S'e^t^  ^,J^^  «*d  ««Ml  in  the  p,4- 


CtaAs.  J.  Cainig6L,J.8.I>. 


«, 


I- 


n. 


.'*.  ; 


•>•■ 


i  it 


> 


•I- 


ir? 


«V 


'v# 


<;•■  s  ■• 


A 


\ 


Ii  î 


'•■El 


r     K 


74 

At  Staubridge..  I  àaw  them  handcuffed.  I  was  amed  when  I 
was  m  Staa^ridge,  having  a  wvolver.  >  I  do  not  reSw Tmt^ 
«ning  to  shoot  «y  of  ike  prisoners  m  StanbriS     I  had  mv 

•rVu  fVj'y.^®'*  »o*  haodcuffed  at  that  time.    I  rtàkt  hâve 
aaid  tha^  tf  ihe  man  who  had  shot  at  me  would  give  ifa?S  si^e 

who,  after  they  had  ridden  up  the  street,  snapped  a  rifle  atth^ 
ItwasamanofthenameofGiIflon.  «-naeaimem. 

Swom,  taken,  and  acknowledged/ 

before  me,  on  the  day,  month, 
<    and  year,  and    at  the  place 

herembefore  mentioned. 

.;    Chab  J..Q0URSOL,  J.S.P. 


LEONARD  L.  CROSS. 


)» 


fiifl. 


PROVINCE  OF  CANADA, 
DùtrJtt  0/ Montréal, 


POLICE  COURT. 


The  ewninabon  of  i)anw;  Greenleqf  Thompson,  of  the  town  of 
Montçeher  in  the  State  of  Vermont,  one  of  le  United  sSof 
Amenca^  clerk,  now  m  the  city  of  Montréal,  taken  on  oath  Ûm  12èh 
fif  Noyember,  m  the  yearof  our  Lord  one  thousand  eight  hun. 

f  SI  nf  M  "^"*?"'  t  *fe  ^?^^'*  ^^^'^  ^  <*«  Court^honsTin  the 
«ity  of  Montre^,  m  tiie  Dwtrict  of  Montréal  aforesaid,  before  the 
underjiged  Judge  of  the,Se88ioi»8  of  the  Peace  in  and  for  the  Boid 
TZvL  T"^"^',^  ^*  présence  and  heaiingof  Samuel  Eugène 
Ijickey  Sqmre  Tumer  teavis,  Alamanda  Fope  Bruce,  OlSes 
wX^r^'  ^!l«'  Scott,  Bennett  H.  Youn^Caleb  ModÏÎS 
.Wallace,  James  Alexander  Doty,  JofleJ)h  McGrorty,  SamuS 
Simpson    Gregg,    Dudley    Moore,    Thomas    BioubS    cE 

Î^ÎTi^'^'  "^  ^?^°*  ^'  H^tchmson,  who  are  now  chÏÏP 
before  me,  upon  complamts  made  under  oath  before  me  unde^l^e 

IJmted  States  of  Amenca.  and  our  Sta«6tes  in  tiiat  behalf  made, 
wth  having  oomœitted  wiQiin  the  jurisdiction  of  the  United  S 
u  M®?°^  î*  foUowmg  crime  mention«d  in  the  Treaty  betwemi 
HerAfafegtvtheQn..n,  .nj  ,x..tTJ,.^^  Ptatri of  AmoZ: tTuT 
*or  that  they,  the  said  éamuel  Eugène  Laok^S^^  Turieè. 


%. 


7  11 


.^, 


75 

Mder  Doty,  Joseph  Srirtv   S,  J  2- ^*"**'?,' ^'^«^  ^J«*- 
Moore,  Thomas  BwnsZ  CoS-  î?       ^'^^"^  ^'^^  ^^^^I 

America^ingtiien  andïheLl!Z2°^^      of  the  tlnitcd  States  of 

vers,  loaded  wîth  rowde/and  bXTn^^  "?  ^^  "''""'*  '"^^^- 
(V^s  Newton  BisC  feUfoniv  il^  ^'*PP^^'  '"  ^'^'^  "P^"  o°e 
sid  Çyrus  Newtor&hon TSî?  r'"*''^  T-  ^*"^*  ^^  him  the 
-then  aS  there  fSonioS?d S  tt  ^an?I  ^^lî-  ^*°«^^  ^^  ^  ^«' 
wit:  to  the  amourTLe„V?hi«°  1  7l^  '"^  of  money,  to 
the  said  United  Stl.''rli^::'^i^/T''' r^"'^ '' 
thousand  dollars  carrent  mone vTfoî^S  vA®  ''*'''^°^  '®^«»*y 
perty  of  the  h&nkotitMhS  «  w      '  ""^  t^e  moneys.aiid  pri 

re^fcèd  byThe  ?aws  of  fc  gîte  nfV"'  T'^t^^^'*  «^^ 
United  States  of  AmeHc^l^t^^t      ^«T°^*'  ««^  t^e  said 

and  there  feloniously  and  violently  dîd  steJtfke  «nd  .«î^  *^'" 
against  the  forta  of  the  Statutesx)/ the  sJXf^^Jv  ^^  ^''Y 
case  made  and  provided  imdlZiZ  î?  ^  of  Vennont,  m  guch 
The  de^nI^Tanlr<^SJ^^^^^  «wd  dignity  of  the 
dcposeth  and  saith  :  rhavrcild  th7^'  T°  ^."'^*^ 
and  filed  in  this  case,  pïî^SHohl  1*"°T\P'*^"«^ 
of  the  Législature  of  VeSrinlJL   ^  '"''P'^i  ^  ^'^«^  ^c*» 

Albans  baâ,  .rl7:S^^r  Aet^rt^A^S' ^  i*" 
secretary  of  state  of  tho  ool/î  o*  7     i-  4r        ^'^  '^  °™<'0  of  the 

a- ..  ol7rk,  M  ded.tft^Jd'"tl»M'i^^^^^^  I 

copies  of  the  eaid  oriirinal  Airt.  .«.S?   i    ^^nr-J""  ""*  «W»* 

^|ve^«gnat«res  of  the  goven..r  and  sèc'îtyTia^ ot^^^ 

conteinS  the  tnith,  ÏÏ X'ed       ''^'"*  ^^^'  *^**  ^^  ^^ 

^   ■  DANIEL  G.  THOMPSON.   . 

BWom,  taken,  and  acicnowledged, 

bofore  me,  on  thf»  dày,  month 

and  year,  andat  thg  pW^  hoge. 


Pdye 


T-t 


",    ,S'ï 


ift 


f- 

'M:^ 


infteÇM-e  mèntionod. 


'f* 


CHAff.  J.  ÛOIOMOL,  J.S.P. 

>      V    "  ■  "  " 


■|1 


(I   ,  (1 


,^v>^; 


;4î;«'V*'' 


rij 


lifii^!  : 


r  ■ 

Montréal,  12th  November,  1864. 

DANIEL  G.  THOMPSON, 


.*>. 


Chas.  J.  Coubsol,  J.S.P. 


/ 


♦«  5^*  '^^^ï'''^.^^^^  he  underetocKl  there  was  no  fUrther  évidence 
to  adduce,  for  the  prosecution,  aâ  tp  the  ohar^e  ofTbWof  the 
St  AlbaM  bank     &aving  closed  tïe  evî'dence^in  thS  S^of  the 

«^^ho^  be  read  to  theT^r^  ^ee  ^tîerhS'  aï^^tft 
jel  for  the  Crown  in  the  matter;  and  as  they  thought  k^v^S 
,    i^?**-,-^*"-  ^*^«  hoped  that  the  Judge  wôàld  not  consider  it 

After  some  further  renlarks,  at  the  request  of  Mr.  Devlin.  jZ 

Srthe' c?::^lirf.^  for  «rebutes  to  aiwTe  s 

S22^«£SS^?^  *^  ''^  ^^  F-cutJSa. 

Toi^SS^'  *'  ««eis  closed,  and  we  mit  àKe  thé 
^r.  i>«,&n  understëod  that  nb  further  évidence  could  be  adduoed 
SidW  Ibî™**^  f^^'^^inations.    If  that  were  to  be  the  mSS 

ItsK^T^"^''  '"^  '**"^**'  the  volunury  statemen*  is  the 
f^yg  <^<>ffrf«?A— yrai  yon  ahev  me  that  ?  .      ^ 

Aller  "flOniA  niH-Ji'lai.  AXa^mmai,,^ 


Afleriadme  further  diiotuainm/ 


«  •-•» 


■ ..  il 


n 


) 


■',■.';  ** 


%    ?' 


.,V 


^^^^'^f'^^''^^'<'^-<^on  fchey  had  to  the  volu^tary  „ 

luiS^f^^  aMwered  ttiey  had  none,  but  contended  thafc  the  tîme 
l«d  not  Jet  amved  for  the  taking  of  it,  unless  ÏE»  HoS  decided 
tbatUie  caae  w«  finaUj  closed,  and  that  after  mroSJ,lZe  - 
WM,  no  farther  teatimony  would  be  permitted.  -  ^'^''^'^  ****«- 
*^e  Courtoî  said  that  thè  EngM  courae  of  practice  wm  unA^r 
ea^  oiroumstences,  the  safest  L to  Mew^an^  ?a7c(o^^-! 

.Mr.  ^evUn  said  one  of  the  reasoM  for  wishing  to  defer  th« 
If  S*!2L::?5r  S^°*  .'^*^'  ^^^'y  ««certainedwh^Lrl&Honor 

^^e  ^««^p-I  raie  that,  before  the  prisoners  are  caUed  uDon 
to  #ye  a^ers  at  aU,  or  before  the  question  as  to  adducinï  foXr 

*  SLTÏf       1    î    -  ^  ^^^.  "®^®'  «^«>8sed  any  opinion  as  to  whe- 

^•*?  ^oJ«ï»?^  examinations  are  requisite  oïnot.  buttWt 

order  ^mto  be  tokeikbecaufle  the  coSl  foS^e  C«l  wî 

-expresse^  a  ipih  to  that  effect.      .  -     ®  ^^^^  ^*^® 


.  VOMJNTARY  STATEMENr  r 
■    ^K'  ^  'î'  ^  ^»»*«'  'Sfeiï*»  of  Amenda    fdenimul» 


^ 


PROVINCE  OP  AnAI^A.)    *  -^ 


•       !^ 


> 


4f'*  'M 


^?^™^«rœii^t^- 


» 


78 


).j(«j»ï»».-tf-. 


'  ! 


fr> 


t    . 


^ 


and  othera,  to  wit  -^w  '  i  tT**  the  said  Bennett  H.  Younr 

Scott,  Caleb  McDo^S^wS  &  .^^'^Swager,  Oeorg. 
McGrortj.  Samuel  SlmUn^/S«^*°'*''mP^*^'  ^^^ 

aforesaid,  in  the  aaid  Stete  of  V«  ^^i  **  ?«  ^  of  St.  Albana 
of  the  aaid  mt^Tii^/^^^\^^  ^^^  the  jarisdfotion 
with  certain  offensive  w^^nfZ     '**"*«  **»*"  »n(|;ibere  armed 

*nd  capped,  b  and  unon  one  C^  Newl^iî^'^r  '^^^'^' 
.  make an  assaulfc, and Lim,  the  s^y^Sf  fi'î^"'' ^^^^  <"<* • 
fear  and  in  danger  of  hia  life  tî^n  S  «:^*^°.  ^^^P»  "»  ''xxWy 
and  a  certain  stm  of  mdhev   to  wk  .  *^r  ^'«'^°'»'y  <«d  put, 
thousand  doUars  cuîreS^^^  ^^u^  ï-!,  T^"'  <1  «event; 
Aiflerica,  and  of  the  virXvifwK^**  ?^*^  S*»*«»  o^ 
money  aforesaid,  of  the  mTnevà  fnH?  ^""T^f  ^*^"«"  ««^«^ 
Aïhai,  a  body  corporate  St  ^a  ^T^'^^  ^^  *«  ^«^  of  St. 
of  the  said  Ste3%nr  *n^^'^î  '^î^^'^  ^^  *h«  1*^ 
America,  from  the  pei^n  cu^^^^  '  ""-^  ^°^*"^  States  of 

will,  of  the  said  CyîurNéwCBlS  P?^«^'°?'  ?°d  against  the 
and  violently  did  steL  tdte  Ld  „ï  P'  *''^''  '^^  ^^^'^  feloniou«ly 
the  Btatutes^of  the  S  S  ^  VeSn*r^'  T°«'  *«  ^^^^^ 
provided,  and  aeainTth^?!!       ^«^0»*  m  such  caae  made  and 

ihe  said  char^Sg  ^ilTtLtidtel'S^r'  ^***^'  -^ 
^ta««?2forjhep^^  H;  Yotin&  and  the 

James  R.  Annmgton,  Slei  A   M?"  j^'^'  ^"^  ^'  ^tpea, 

"Whitoan,  Marcus  W.  BeaSST  l'i\^'^^«*»'^'  ^énr/  N. 
son,  and  John  0'Leai-y-!Sl^«L,?  ^^'  ^*°'«ï  G.  ThJmp- 
the  said  Bemiett  H  ^W  k  I  '^Jj  "^'"«'^  ^  ^  Pr«8«Qce^ 
"  Having  .heard  ^e  SZ  T 1^"^^.^^  "»«  »«  ^^^P^  ' 
;;  answer  to  the  charge?  Tu  i^  Sî  llï  .'*^  '^^^^''^^  ^ 
"  uniesa  you  désire  to  do  so  •  biî^tiSl  ^^  ^  «^^  anything, 
"  down  in^  wriiing,  aad  m?  be  l!^"^'' J""  ^^  '^^  »>«  ^« 
"jour  trial."      ^'  •'^  *'®  «*^®"  "»  endence  a^iinst  you  at 


•?**■'■. 


*^'*^WÇ''^-- 


'W 


■K 


^  79         • 

>     States,  to  which  I  owe  alleinanpp     T  ««,  „     *     •   . 

the  amy  of  the  ConfedSTt^tes  wTh  Iv 'î'frr î*  "^''^  ^■ 
are  now  at  waa-.    I  ow^ncT^letw'  wu  ''^''i  ??.  ^°'*«<ï  S^tea 

Biich  mmneAa  my  counsel  ahaJl  adV^  mîw  ^"^.^^  "»- 
St.  Albana  was  done  bv  theftutihnSJTf  *-i  ^'^^^^^  ^«w  done  at 
Qoyèmmenî.    X  hâve  not  ^te^^^^  ^'  Confederate  ' 

.  Canada  or  Oreat  Britob     Sî^l?'  «eutrahty  laws  of  either 

were  then  uider  myZama^^  t^^^  t  ^"^t^fï«  ^"^7»  and 
of  October  laat,  an5  tSlm  of  3;I!".T^  ^'^'^  ^^  ^^th 
Several  of  them  ^re  priLnew  of  ^l7^^^^^^  «^e,#. 

rai  forces,  ani  rXueTT  suci  ^^^*tS\"' -^^"^-^  ^^  *^^ '^^^^^ 
escaped.     The  exneStion  wïS  L*     .  ^^'''ï  impriaonment  th$  ' 
CanSa.    TheU^  i^U^  L*  «l^^.  ^^°*  «^  Projected  ii 

measure  for  the  bi^barous  atrS^iSrft  SLiï^  C^!  V  '^'°' 

prepared  for  the  fuU  deC*^:?  mLu^T^T^''    l  '°^u^^*  ^ 
communication  with  my  eovemm^nt  at  R^ni,^  com^^and  without 
as  such  9rt&m«mcationi  bt^Xted  h!  i?"'^*'''^  '^'^  ^^^^ 
by  land  And  bv  sea  I  do  i^rïï  «î?  t^  *^u  ^*°'^®®  govemment, 

(Signed) 

Taken  and  acknpwledged  before^ 
me.  at  the  Police  Office  in  the  1 
laid  City,  of  Montréal,  the  day  f 
and  year  above  |nentioned.     j 


BENNETT  H.  ^UNG. 


/ 


•7       _  wj  •wi  '^«gB 

• 

-rtiî*rw^««^  PhIf 

, 

^^^0^  vCffi 

^     1    ,1  ■ 

♦                                      ! 

,  ,  fil. 

*1 

1       'i 

.'"< 

a'' 

s 

. 

i\        ï 

1      s 

»■ 

!.. 

■       Â 

' 

it  'lli 

'^"  ♦'•!« 

^H 

, 

''  ^^l^v 

'  rfl 

i 

v] 

(                    V  Mm 

^j-    1     ^#1 

m 

<*L^HKi< 

•♦*^i^^ 

n^^Hnl 

ré 

|P 

.si' 


'(^gned)        Chab.  J.,Cour6ol,  J.S.P. 


jja*  «  ''  ^ 


80 


'if 


\ 


.-O^l 


lÀesOmaat  Young't  Commànonê. 

COMÏBDKHATI  SatA-TBS  OF  AmhWOA, 

Wab  Drpabtmskt, 
.      Richmond,  June  16th,  1864. 


! 


^  ^'"TT?"  *"  '^^^y  mfonned  tixat  the  Président  \m  «ppointed 
^S«.^^*  Jie^naat,  under  the  Aèt  121,  approved  FebruSS^r 
1884,  m  the  Pro^onal  Amy  in  the  service  of  the  Confederate 
»tate8,  to  rank  «  sach  from  the  sixteipnth  day  of  June,  1864 

fnn'îâi^  ^"^  **  *r  ^*^.««««io^  advise  aiTd  consent  theretoi 
you  will  be  comadssiqned  accordingly. 

ys}^^^^\^  ^T^^"^'  PÏ«««®  ^  conunumcate  to  this 
Department,  litrough  the  Adjutant  and  Insi^ctor  General's  Office 
your  acceptaBce  or  non-acce^tance  of  said  appointaient,  and,  with 
-your  letfcer  of  acceptance,  retum  to  the  A(§utant  and  Inswctor 
treneral  Ae  oath  hère  with  enclosed,  properly  fiUed  up,  subscribed, 
and  attested,  reportang  at  Aie  same  tSne  your  âge,  reSdencerwhen 
ap^îinted,  and  the  State  in  whioh  you  were  bora.-  , 
Should  you  accept,  you  will  report  fojcjjify  to    ■    ^ 

(Signed)  ^   Jas,  A.  Sed  joN,  Secretaxy  of  War. 

lieut.  Bennet  H.  Young,  &c.,  &c.,  P.A.C.S. 


A,J 


,        CoNjFBi^ATB  States  OF  Ambrica, 
.     ^  ^AB  Department. 

Richmond,  Va.,  June  16th,  1864,^ 
Lieot.  B.  H.  Young  is  hereby  authorized  to  organi^  for  speciak 
service,  a  companjr  not  to  exceed  twenty  in jiumberSi  thosTwhT 

Sef  ^''^  "^^  ^  **  *^®  *™^  ^^^'^''^  *^  Ckéifederote 

They  wiU  be  éntitled  to  ^ir  pay,  rations,  clothing,  and  tians- 

/  portabon,  but  no  other  compensation  for  any  service  which  they 

ymaybecaUedupontorender.  "^         ,  .        ^ 

The  organisataon  will  be  under  the  control  of  this  Department. 

and  bable  to  be  disbanded  at  its  pleasure,  and  the^nemberi 

retumed  to  their  resp^tive  companies. 

•         Jas.  A,'Sbdi>on,  Secretary  of  War. 


I  '{• 


_> 


81  '  .>      • 

c#S^'&SSl.  l    ^OI-ICE  OFFICE.  V.^ 

Smmwl  Miffene  Lachev^  late  of  the  town  nf  st   in. 
State  (rf  Vermont,  cme  Tthe^ited  SteL  nf  A    "'?'''''  ^  *^' 
charged  before  the  nndersiimed  f^SL  ?      /**L^«»enca,  stands 

this  twelfth  day  of  Novembérfné  ^  of  ot^  T^i?  -'°*^'^i 
*ight  iwadred  and  sixty^fouJ,  foTtîat  tî«  ^irT '*''V^^°''*^'* 
l4Màeyand.other8,t»  ^Tsennett  H  ^^  ^^'î"'  ^'^S«'»« 
Teavis,  Ahmuinda  PoprBruce  Ch!L-  J''"''^'o^^"^«  hunier 
Scott,  Caleb  McDowXwa^^;  Jal?  .^*^^ /wager,  George 

nineteenth  day  of  O^WhS  Jst  «?♦?*  ,^''*<*!?««n»  «n  the 
aforesaid,  in  tÉe  é^i^ZSY^liVfJ^^'',?^  ?K ^Ibana 
of  the  said  United  States  ^Am^oTlT  îï*""  *^®  jurisdiction 
>vith  certain  offen/e  wéals '^dîn^^^^^^^^^  "^^  ^'"^  «™^ 

monly  known  abdlalled  C^^^  ToS^wS  ^  "^^ P'^*^?'  «^'«- 
and  capped,  in  dfd  npon  oTçh^s^±TL^:^^^^  ?"^  ?'^«' 
mke  an  tesaulÇand  Eto,  the  sS^C™  N^^'î  ^-Ï^T»»^  did 
fear  and  in  danger  of  hi^  life  «^^n  S  .u       î-  ,^'^^*'P'  ^"^  ^^^ 
and  a  certain  sùm  of  IneV  t^v^  f.  r^'^'"'""^^^        P«C 
thousand  dollars  curLTmLv  «^ '^J-  *e  amount  of  sevent^ 
America,  and  of  the  vlrof  ^sevLtv  ♦i^'*  ^a"^^^  ^^^'  «f 
Pionfey  aforesaid^of  the  money    ïï  nL^T?!^"".""'  «'^^^t 
Albai,  a  body  corpomte  Stit^ted^IS^''^  ^\  'î*"^  «^  S*- 
of  ,the  said  SUte  of  ^r^oTïd  i'TjS  '^%^^'^  Jy  the  Iaw8 
AiSeriga, from  L  person  custodv  JÎ  t.  '*-^  ^""ï^  ^^^^  «f 
will,  of  4e  saidVîu^  Newton  rIk^    P?'^^^»»"?'  ««d  against  the 
and  violltiy  L  SS^"J^'^^^^  *^«°  \°d  there  fllofiiousij 

the  BtatuKf  the  ïïd  Sterf  vSnr '^'^^r^'-  *^  ^^^^  ^^ 

provided,anda.ain3tLpe!^el^r^^^ 

thesaid  charge  leing  read  te  the  said  s2iel  F  îtl^*^ '.*?'* 

witnesses  for  the  prosecution  —O™  K     «•  r**'^®^'  ««^  *o 

Knight,  James  F^vk^fA^B  ï!^  ®^.^^P'  F^»^  0»  '  • 

the  said  Samuel  eS  iV^Z^S^^I  ^  *^  P^««^°«^ 
*'  mssitt  te  thft  nharge  ?  ^V^u^^^^!:"  ^P.r.'^^J^^thgg^à- 


unfèasyQtt  désire  te  do  so;  but 


anything, 
you  eay  will  be  taken 


i 


\ 


*  I 


\ 


'     .  iV 


.   »' 


;  Il 


\l. 


t  i 


J>f 


^A\'' 


%■ 


;;    W:- 


\  '  l. 


-,l   ■' 


s'a  t^  ■  '. 

i'S  I'  ■». 


"'<&t;^ 


^a-Sv.--^':^'^^ 


^ 


'*', 


■  Whereupon  thé^aaid  Samuel  Mi^me  Zat^  saifli  «É  foflow»- 
I  am  a  native  <^  i^^Q^mî^dert^Ç^^tate^^Wy^SSy^^tr 

not  dewgnedl^buirfey  theTortune«  <tf  war.;  ISTeSS^ffiTl^^ 
of  tjw  country  or  of  Great  BriU^,  unie»  itW  Sa^ft^I 

ËConfederate  «ddier,  driven  bj  Hw  fcard  &té  of  w^to\«ir^i,î^ 

pnsoner  of  war,  my  command  how  beine  held  m  ««-«rm^^!^ 
at  Ca^p  Douglas  4,  tom  wlûchTl!::^!  m^d'e  m/^^  t^T 
the  mercenarj character  of  thèse  gaUant  Yankees   a  XXwkÎ 
make  war  for  pl^der,  aad  are  bra^nhe^ty 'niak?7i  uln 
women  and  chUdren.,   I  bave,  during  the  capt^irS^v  Z 
numd  been  detached  for  especial  serrée  inside^S  Wmy^J  S" 
under  the  command  of  Lient.  Bennett  H.  Young  ^       '     ' 

.rnl^  V.  "^    K  ^^  ^«^r««*  saith  not,  and  hath  signed,  the  fore- 
&»mà^S  been  prevîously  read  in  his  présence. 

^'Sned)        SAMUEL  EUGENE  LACKEY. 

acknowledged  before^ 
^  de  Police  Office  in  the  ( 
Jjty  of  Montréal,  the  day  ( 
fear  above  mentioned,     J  ' 

(Signed)        Chas.  J.  Courbol,  J.S.P. 


anc 


I     POLICE  OFFICE. 


.  PROVINCB  OP  CANADA, 
Diêtrict  of  Montréal, 
CITY  0  F  MONTREAL. 

Marcm  %é7r,  late  of  the  town  of  St.  Albans,  in  the  State  of 
Vermont,  one  of  the  U^ted  States  <rf  America  stends  charged 
before  the  undemgned,  Charles  Joseph  Coursol,  Esquire,  Judge  oflhe 
Serons  of  the  Peace  m  and  for  the  city  of  Montreà,  thi  tweifth  day 
of  November,  m  the  year  of  our  Lord  one  thousandTght  hundwd 
and«xtyHfour,  for  that  the  said  Marcus  Spurr,  and  oaL,^,^^  ' 
Samuel  Eugène  Lackey,  Sqnire  Tumer  Teavis,  Alamanda  Pom- 
Bruce,  Charles  Moore  Swager,  Bemiett  H.  Young,  Caleb  Mcd3 
WaU,»ce,  James  iUexande;;i)oty,  Joseph  McGrorty,  Sa^Ll  Son 
^'?^^.,P"f  7rH°*''^'  ^^"^  ^^^on  Collii^,  George  sS?r 
r?  Wilhaj»  k  Hutchinson,   on  the  nineteenth'<knfoctober 
kst  past,  at  tiie  town  of  St.  Albans  aforesaid,  m  the^d  Stete  of 


fî^i; 


Newton  Biahop,  fdôSlft d  Ik?'*^'  "^  ."''^  «POU  («m^CW 

dollars  cuirent  monev  aforésaM   Z^    ^'^^of  ieventy  thouètod 

hj  the  lawfl  of  the^d  Stîte  3^^!!'  'T^^^}  «^d  reigoi^d 
•     States  of  America,  fi^m^e  SHuI^»^^^^^^^       «»id  Kd 
«pnatthe  wm,of  thesaid  Cyr^N^'t^nW^J  *?^  Possession,  and 
-        mou8lyandvioleri%didsteJ^t«?ï"^"^^^^ 

pwvidéd,  and  againstme  dm^UT^S."'/".*'^  <""«  "^a^e  and 
,      ti"»  «id  charge  bSfreSftT^^S^^  "^^  State;  and 

forAepSutionri^NewlïT^P'ST'«'^«»^  a 

JamesF.BesriviewTACffi?       ^'^''P'  ^'««^  G-  Knidit     ~ 
Aniungton,Ch«ÎSA  r^^^J^I^ 

W.  BeaHisley,  Jaioe8Saxe,Daniel  gIK^SJ^ 

— being  séreraUy  examined  i^  kL  If'  ^**°^P»?«»'and  John  O'Leary. 

"  do  you  wish  to  say  aûv^^T  ' -„     ^i  ^T^  *^«  évidence, 
not  obUged  to  8ay^«^ythW^i^L^*^^'¥««^    You  are' 

"evidence  againstyou  atyourtrS  »  ^'  ^   °^^  ^®  S*^®»  "^ 

Whereupon  the  8aidilft,r««  ^„;^  saith  ^  fj,„^^ 

Stat/ar^lï^^^^^^^ 

ance  to  the  soKîaUed  Onitivfi  ^t^tl  7®*  exp,red.  I  owe  no  allem-  i 
of  America.  I^^heX^^^J^^tf't^f  "^'f^^^^  ^feZ  ' 
fà  by  briKng  a  "  Yankee  S^<°Z  Vl^^  ^««^ 

cocted  by  Lient  YoSg^îd  ^eT^'m!  ^ï'""'  ^t.,  was  Zt 
St.  Albans,  I  did  as  a^Xr  o?fconS*'  J  ^^  *»*^«  <^o°^^* 
m .  accordance  wi<h  ordera^ Lm  T t»«*  v '^®™*®  States  army,  and 
doing^this,  I  h^^y^m^Z^^^'^jT^^^'^'^^'^j:  lu 
We  lost  kindred,  and  lu^veldSre^^dTrS"**  ^"*^-    ^        ' 


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84 

And  further  Exarjûaant  saith  not,  and  hath  signed,  the  foregobg 
having  been  previouslj  read  in  hia  présence.        '        » 

(Signed)  MARCUS  SPURE. 

Taken  and  acknowledged  before^ 
me,  at  the  Police  Office  in  the  I 
said  city  of  Montréal,  tiie  day  f 
and  jear  above  mentioned.      J 

(Signed)  Chas.  J.  Coubsol,  J.Ë!P. 


PROVINCE  OP  CANADA, 
Dùtrict  0/ Montréal,         ' 
CITY  OF  MONTREAL.     ' 


POLICE  OFFICE. 


Alamanda  Pope  Bruce,  late  of  the  town  of  St.  Albans,  in  the 
State  of  Vermont,  one  of  the  United  Stateê  of  America,  stands 
charged  before  the  undersigned,  Charles  Joseph  Cpursol,  Esquire, 
Judge  of  the  Sessions  of  the  Peace  in  and  for  the  ciW  of  Montréal, 
this  twelfth  day  of  November,  in  the  year  of  onr  Lord  one  Âou- 
sand  eight  hundred  and  siitty-four,  for  that  t^e  said  Alamanda 
Pope  Bruce  and  others,  to  wit  :  Bennett  H.  Youjig,  Samuel  Eugène 
Lackey,  Squire  Tumer  Teavis,  Charles  M90re  Swager,  G«irge 
Scott,  Caleb  McDowall  Wallace,  James  Aléxander  Doty,  Joseph 
McGrorty,  Samuel  Sifljpson  Gregg,  Dudley  Moore,  Thomas  Bron*- 
don  Collins,  Marcus  Spurr,  and  William  H.  Hutchinsdh,  on  the 
nineteenth  day  ôf  October  last  pait,  at  the  town  of  St.  Albans 
aforesaid,  in  the  said  State  of  Vermont,  and  within  the  jurisdiction 
of  the  said  United  States  of  America,  being  then  and  there  armed 
with  certain  offensive  weapons  and  instruments,  to  wit,  pistols,  com- 
monly  known  and  called  revolvers,  loaded  wiÂ  powder  and  halls, 
and  capped,  m  and  upon  one  Cyrus  Newton  Bishop  feloniously  did 
make  an  assault,  and  him,  the  said  Cyrus  Newton  Bishop,  in  bodily 
fear  and  in  danger  of  hiis  Ufe  then  and  there  feloniously  did  put, 
and  a  certfun  sum  of  money,  to  wit,  to  the  amottnt  of  seventy 
thousand  dollars  current  money  of  the   said  United  States  of 
America,  and  of  the  value  of  seventy  thousand  dollars  current 
money  aforesaid,  of  the  moneys  and  property  of  thç  bank  of  St. 
Albans,  a  body  corporate,  constituted  and  reoognized  by  the  laws 
of  the  said  State  of  Vermont,  and  of  the  st^d  United  States  of 
America,  from  the  person,  custodj  and  possession,  and  against  the 
will  of  the  9aid  Cyrus  Newton  Bishop,  then  and  there  feloniously 
and  Violently  did  steal,  take,  and  carry  away,  against  the  forra  of 
the  statutes  of  the  said  State  of  Vermont  in  suoh  case  made  and 
provided,  and  against  the  peaoe  and  dignity  of  the  said  State  ;  and 
the  said  o|iarge  being  read  to  the  sud  Alamanda  Pope  Bruce, 
and^  th«^  witnesse»  for^&o  proseouë^^ï^iidyrai  Nsirton  ffishoK^ 
Edward  C.  Kni^t,  James  F.  Desrivieres,  Aaron  B.  Kemp,  Léonard 


.8* 


85 

L.  Croêfl,  James  R.  Araiington,  Charles  A.  Marvin,  George  Roberts 
RosweU  A.JEIli8,  Georç  t^FaircIÛId,  John  McIxInS^n^  n' 

flon,  and  John  0'LeM7,-bemg  sererally  examined  in  his  presenT 
the  said  Alam^  Pope  Bruce-  is  now  iddressed  by  me  m  foK' 
Having^hpard  the  évidence,  do  yon  wish  to  ly  anytWng  b 
answer  to  the  charge?    You  are  not  obliged  to^sayCîw 

«  jZ^JP    ^'        "'^  ^'  ^"''^  ^  évidence  against  you  at 
Whereupon  the  smd  Alamanda  Pope  Bruce  saith  aa  fojlows  • 

Mv  Zn*  w?  f  ^^^^"«tyv*^'*  ^ *  Confederate  StatlsoldJer. 
vJ.S  ^««^«V'^f  d.    I  was  made  prisoner  in  June  last  by 
Yankee  troops,  and  made  my  escape  from  a  car  whilst  being  carrie J 
as  such  to  the  Yankee  pnson  at  Rock  Island.    I  jomed  Lient 
Yom.gat  Chicago  l««tAugust.    I  hâve  violated  no  lais  of  Canada 

S^l^îL  ^^'''*''l''r  ^""'y^*^«^*^°«^  *^«  so^aUed  United 
Stetes  bas  been  an  act  of  war,  as  my  govemment  the  Confedemte 

States,  are  a^warwith  the  Yankees,  and  I  owe  aUegiance  to  iV 
accused  of  having  shot  Mornson  at  St.  Albans  ;  if  I  had  shot  him 

L  Ï!  1  T'    ^J^'  J  **^  "•'*  "^y  *^^«  *<>  ««^een  mj^elf,  but  aa  it  is 
the  truth  I  justify  the  act  as  an  act  of  war,  though  Morrison  w^ 

?^  T!f  *>  ^''*i^'  '™^'*  ^^^  ^^•^  «'^ked  behi^d  him  î  hlv^ 
K,i«^KM  r  **^  T'  ^  T'^  ^**"y  "»««l«red  in  Camp 
Douglas  whilst  unarmed,  and  doing  nothing  to  provoke  it.    Yankee  - 

S^terAiK"""'^  **"'-S'''  T^**'"'  P^«l'  P«>^«ked  the 
attack  on  St.  Albans  as  a  mild  retaliation 

And  fiirtherthe  Examinant  saith  not,  and  hath  signed,  Ijie  fore- 
gomg  havmg  been  previously  read  m  his  présence.  '  "^     "^'^ 

Tou  L  (Sjgned)  ALAMANDA  POPE  BRUCE. 

TakeVi  and  acknowledged  bèfore^  ^«^v^r-. 

me,  at  the  Police  "Office  in  the  I  ' 

said  city  of  Montréal,  the  day  f 

and  yeâr  above  mentioped.     J 

(Signed)         Chas*" J.  Coursol,  J.S.P. 

PROViyOB  OP  CANADA, 

DUMct  0/  Montréal, 

OITY  OF  MONTREAL. 

Judge  of  the  Sessiomi  of  the  Peaoe  in  aiid  for  the  city  of  MonC' 


I     POLICE  OFFICE. 


;*ti 


".; 


3<r;  %. 


:f&Ù0^XJi'' 


««  J.  J 


'■Vé. 


86 

this  twdfth  dy  of  Noyember,  in  the  year  of  our  LorAnô  thousand 
eight  hundre^  ,açd  suly-four,  for  that  the  said  Charles  Moore 
Swager  and  othws,  to  mi:  Bennett  H.  Toung,  Samuel  Eugène 

^^^^^  fr^  ^,?3*^»  ^"^"^^  PoP^  Bruce,  Geor« 
Scott,  Calefi  MoDowaU  WaUace,  James  AJexanSr  Dotv   JoJS 
McGrortjr,  Smuel  Sunpson  Greçg,  Dudley  Moore,  ThoS^s  BroS 
don  CoUms   Marcus  Sçurr,  anrWiUiam'' H.  Hutchiflon,  onX 
nmeteenth  day  of  OctoW.h«t  past,  at  the  town  of  St  AlbSJ 
aforesaid,  m  tÊe  «ud  State  ofVermont,  and  within  the  jurisdicS 
^twX^-  ^^^^^.Stetes  of. America,  bemg  then  and  there  amed 
witt  certain  offensive  weapons  and  mstrumente,  to  wit,  pistôls,  corn- 
monîy  known  and  caUed  revdvers,  loaded  mûx  powder  and  baiS, 
'  and  capped,  m  and  uçon  one  Cyrus  Newton  Bishop  feloniously  did 
make  an  assault,  and  Vi,  the  said  Cyrus  Newton  khotf,  in  iSv 
fe^  and  m  danger  of  his  life  then  ùd  there  feloniously  SdZC 
and  a  certem  sum  of  money,io  wit,  to  the  amount  of  sevenir; 
thousand  douars  current  raoney  of  the  said  United   States  oï 
Ajmenca,  and  of  the  value  of  seventy  thousand  dollars  current 
money  aforesaid,  of  the  moneys  and  property  of  the  bank  of  St 
Albans,  a  b«iy  corporate,  constituted  and  recognised  by  the  laws 
of  ti»e  sa.d  State  oFvermont,  and  of  the  said^nited^Stetes  of 
^ïïf  *;i.       •  in  P^"^?  '  omU>dj,  and  possession,  and  against  the 

^i'^1  «'"^^^r?  ?t"^°  ?^^°P'  *^«"  and  there  IloniouT 
T    ^olently  did  steal,  take,  and  cany  away,  against  the,  for,    ^ 
the  «testes  of  the  said  State  of  Vermont  in  suTcase  mX| 
S!"^"^^/',,      *f^'  the  peace  aud  dignity  of  the  said  State  }W 
the  said  charge  bemg  read  to  thè  said  Charles  Moore  Swager'  and 
the  witnesses  for  the  prosecution,-Cyru8  Newton  Bishop,  Wward 
r;^^T  *'  "ï"?    •  ^««rivières,  Aaron  B.  Kemp,  &nard  L. 
Cross,  rames  R.  Anmngton  Charles  A.  Marvin,  QeSge  Roberte 
S^  m-d'  ^"^^««"-g^  W-/airchild,  John  McLughlin,  hJ^ 
N.   Whitman,  Marcus  W.  Beardsley,  James  SaieT  Dj^el  rf 
Thompson  and  John  O'Leary.-being'severally  exaiined  in  h^ 
rfdlow^-'r'^  Charlea  Moore  Swaler  is  now^ addressed  by  Te 
as  foUows:     Having  heard  the  évidence,  do  you  wish  tb  say  any- 
Amg  m  answer  to  the  charge  ?     You  are  njt  objiged  to  say  any- 
thmg,  unless  you  désire  to  do  so  ;  but  Vrhatever  |ou  say  4l  be 
«  ^ou^ZalT"*^^'  ^'^  °^y  ^  given  in  évidence  aginstyou 
Whereuppn  the  said  CharUa  Moore  Swager  saith  as  foUows  • 
1  am  a  Kentuckian  and  a  Gonfederate  soldier,  owing  no  aUeci- 
ance  to  an  v  government  but  the  Gonfederate  States  of  Ameriol 

toj  tbe  navy  of  the  United^  States,  cripnle  ajid^ïestroy  ite  shiprinT 
and  commerce,  capture  ite  towns  and  cîties,  and  othehme  da^gf 


MB\i  me 
îiously 
brajH^ 


h' 


87 


'I     POLICE  OFElck 


^ederate  8oldier,ao<^.1;Sïv^^^^  did  m  fte  oapaci<y  of 

,meniSS^^edgedbef^™F^«^  SWAGER. 
'     me,atthePoUceOfliceinthe  U 

saidcitjrof  Montréal,  thedayr  U 

and  year  above  mentioned.     J  /  ;\ 

(Signed)    ,     Cha8.J.Cour8ol(jAp. 

PROVINCE  OP  CANADA, 

lAckey,  Sauire  tÎJiI^^,.  T  •  ^«"î®**'^^.  Young,  Samuel  Eugène 

Grorty,  Samel  sS|^  ST/,,f  "S°^^  S?^'  Joseph  Mc- 

Colliii  Marous  sTurind^ilî^  §"  ï*^"!'- ^"""^  ^^°°«<ïo« 
nineteentk  day  o7o7tobpr  W       *     .  Hutchinson,  did,  on  the 

aforesaid,  m  the  Id  Ste^nflr*  P""*'***  *)«  *«^  «^  St.  Albans 
of  the  sdd  uSirStat^s^A^^^^^  ï*^  the  iuriadich^ 

?ith  certain  offS  w^a,l«  r^i  •  ^1°«1^®''  *°^  *^«^«  ««ûed 
monly  kn^  3  caUed  S.^  ^î^^»*?'  to  wit,  pistols  com- 
and  capped^^d  ;ln  oTr™'  i"^'?  t\  P^^'^^'  «^"^  ^alls, 
^^ake  anl^uTl^^hXe^ffZ^^^^^^ 

l>fTern«,;rî^d^<^thT8«TE^%Y/^         °^*^^  «^'ï  Statî 
penK>n,oustUy.andïSC^ny^^^  the  • 


eitK>n,  oustody.itod  fiS«Zon  .^.    •    *1^"""«»'  ^°»  the 


•ï.-^ 

Év 


îjv; 


88 

the  pewse  and  digwtf  rfjhe  aaid  State  ;  and  the  said  charge  being; 
rçad  to  the  aaid  G*a<^»>îttcI>owall  Wallace,  and  die  ^rstneises  for  the 
gx)aecutiop,^Cyrug  Newton.  Biahop,  Edward  G.  Knight,  Jwne» 
F.  Desriyieres,  Aaron  B.  Kemp»  Léonard  L.  Crom^  James  R 
Annington,  Charles  A.  Marvin,  George  Roberts,  RoeweU  A.  EHis, 
George  W.  Fairchild,  John  McLou^m,HenryN.  Whitman^Marcus 
W.  Beardsley,  James  Saxe,  Daniel  G;  Thompson,  and  Jdm 
0'Leai7,--:being  seyerally  examined  m  his  présence,  the  said  Caleb 
McDowall  Wallàce  is  now  addressed  by  me  as  followa:  "  Havmg 
"  heard  the  évidence,  do  you  wish  to  say  anyAing  in  answer  to  the 
"  charge  ?  You  are  not  oWiged  to  say  anything,  nnless  you  désire 
"  to  do  80  ;  but  Whateveryou  sa^  will  be  taken  down  in  writing  Mid 
"  m^  be  given  in  évidence  agamst  you  at  your  trial." 

Whereupon  the  said  Ocdeb  McDowall  WaUace  saith  as  follows: 

I  am  a  native  of  Kentucky  ;  but  at  the  incipiency  of  the  war 

•w  pending  betwèen  the  United^tes  aiid  the  Confederate  States 
0^  America,  I  was  living  in  the  Stote  of  Texas, — one  of  the  Con- 
federate States  of  America,  I  owe  no  allegiance  to  the  United 
Stétes,  but  my  allegiance  is  due  solely  to  tiie  Confederate  States  of 
America.  Whatever  I  may  hâve  done  at  St.  Albans,  I  did  as  a  Con- 
fedetote  soldier,  and  in  obédience  to  the  order  and  under  tiie 
mstn^tions  of  Lt.  B.  H.  Young,— a  commissioned  oflfcer  of  the 
Confederate  States  of  America, — my  commander  at  that  time.  I 
hâve  nbt  violated  any  law  ©f  Canada  or  Great  Britain. 

Andfurther  the  Examinant  saith  not,  and  hath  signed,  Uie  fore- 
going  hâving  been  previowJy  read  in  his  présence.     - 

(Signed)  CALEB  MoDOWALL  WALLACE. 

Taken  and  acknowledged  before^ 

me,  at  tihe  Police  Office  in  the  I 

saidtcitt  of  Montréal,  Âe  day  ( 

and  yeait  above  mentioned.      J 

(Siined)        Chas.  J.  Coursol,  J.S.P. 


PROVINOEREte'  CANADA, 

DUtricttjr  Montréal, 

CITY  OP  MONTREAL. 


POLICE 'COURT. 


Joseph  McChorty,  late  of  the  town  of  St.  Albans,  in  the  Stat<» 
of  Vermont,  one  of  the  United  States  of  America,  stands  charged 
befow^e  undersigned,  Charles  Joseph  Coursol,  iiquire,  Judge  of 
the  STOdons  of  the  Peace  in  and  for  the  cify  of  Monlaceal,  thi» 
twelfth  dav  of  November,  in  the  year  of  our  Lord  one  tàousand 
eidit  hundred  and  sixty-four,  for  that  the  said  Joseph  McGrorty 
Md  othergjitowit:  Bennett  H^  Y(Mmg,  aawwl-BugeBe-Ladkê*^ 
SiuHpe  Tiamer  Teavîs,  Chariee  Moore  Swager,  George  Scott, 
Caleb  McDowall  Wallace,  James  Alexander   Doty,  Alamiuida 


/■ 


A 


89 


«.d  cpped,  ta  ud  ,pon  OM  Cy™  Newton  Bi8h™feSïîd 
make  ao  aagmlt,  and  him,  «te  nid  Cïtm  NB,rtm  fe.?™  •   i^Jïï 
fe^andj.  da„g^of  his'  llfeThenTd%KSo^t^^'^f 
and  a  cer^nUxm  of  money,  to  wifc,  to  the  amount  of  àeve^^v 
ihoxmnd  dollars  current  money  of  the  said  S  sS  7f 

m^TJfo'e'aid'i'îh'*^"^  ^' V*^  thouaand'Sar.  c^Sent 
aK      K  T  '  ^  *^®  "°°®^^  ''"'l  property  of  the  bank  of  St 
;ff  ^'o  -^Q^r^^^'  «'o»««*«ted  anfrecognî^ed  C  the  laws 

iJ^l^f  ^^^  °^  ^'''""°*'  *°^  «f  **  said  United  StoUTf 
Amenca  from  the  person,  custodv,  and  possession,  and  aiSSaTthe 

SS'^oie^L't^^rf  Sr*'"  r^^P'  ^"  *»^  the^SSuS; 

ts&t:a^L^Tf^^e^on^n^^ 

FhTi^-'/'  r^  T^^*  *^«  P^^««  ^'^'i  digniVof  the  sïï  sSte    ^d 
^e  said  charge  being  read  to  the  said  Joseph  Mc^rty  andÏÏ 

^gnt,  Janaes  F.  Desnvieres,  Aaron  B.  Kemp,  Léoiwd  L  Crosa 
Si  ^„AT°gton,  Charles  A.  Marvm,  G^rl  fiSer^  rS 
wwâ,'  ^^  ^""T  ^-  ^'^^'  John  McLougWiTH W^N 
son,  and  John  0'Lear^,-being  sererally  examined  m  his  di^ST 

«^f  tÏTf  «t  'l'T'  '^  y^"  -«h'to^say  aTytïïg'ln 
anjwer  to  ttie  charge?    You  are  nofc  obliged  to  say  anvtWnff 
«idess  yott  desu*  to  doso;  but  whatever  y^Tsay  wS  b7S 

«yrtSaT''*"^'  ^^  "*y  ^  ^^^"  ^  evfdence^aS^Lt  y^:î 

J^ereupon  the  said  Jc,*qt,A  McGrorty  saith  aa  follows  : 

know^iî''  iîTir^'  Tî'u  ""y  **^  °»y  comrades.  The  Yankee» 
toow  thw,  and  if  we  had  been  captùred  within  Aeir  boundariM 

J^ÎTvd^v  •  **^  ^°'™'^  ?'  "'^  *  »««*»1  territory,  and  now 
aeefc  Vy  Yankee  mgenmtjr  and  the  boasted  influena»  of  tE 

3  î' «^h!S!!^^**'  ^®  Oônfedérafe  States  of  Amenoni 
sïïf  tih  ï?  f  ^«"^  ««d  «^  «>  altegiÉnce  to  the  Œ 
»tatoi,  wth^chmy  ooontryiaatwar.    I am  als» »  soidierif 


i 


iip 


II) 


i    r 


H*V 


90 


iho  Confederafce  State» amy^and  of  tte  Bth  eorp Cav.  EÇtalwa. 
I  WM  under  General  Morgan,  in  hia  ezpedHlNi  in  Kentaoky.Jaat 
aummer.  I  waa  wounded  tliere,  and  remained  in  the  State  son» 
weeka.  When  I  recovered  firom  the  effeota  of  my  wound,  I  reported 
*o  lient.  Young,  for  àaij.  Whatever  I  may  hâve  done  in  the  cap«r 
City  of  a  aoldier,  I  fe^  M I  did  no  more  than  my  duty  aa  a  aoldier, 
in  obeying  the  ordera  of  my  commanding  officer,  Lient.  Young,  a 
<sommi88ioned  officer  of  the  Confederate  States  army.  I  hâve 
violated  no  law  of  Great  Britain  or  Canada,— so  carefol  waa  I  m 
ihis  respect,  that  when  I  found  myself  on  Canadian  aoil,  I  threw 

4iway  my  arma.  ,,,.-,   ,1     <? 

And  further  the  Examinant  atûth  not,  and  hath  aigned,  the  fore- 
tfoine  having  been  previoualy  read  in  hia  présence. 

(Si|ied)  JOSEPH  McGRORTY. 

Taken  and  acknowledged  before^ 

me,  at  the  Police  Office  in  the  l 

said  city  of  Montréal,  the  day  j 

and  year  above  mentioned.      i 

(Signed)        Chas.  J.  Codhsol,  J.S.P. 


^ , 


k 


(PROVINCE  OP  CANADA,  i       „^TT^n  nArrurr 

DUtrict  of  Montréal,         S       POLICE  COURT.  ' 

CITY  OF  MONTREAL.      ) 

George  Scott,  late  of  the  town  of  St  Albans,  in  the  State 
of  Vermont,  one  of  the  United  States  of  America,  stands  charged 
before  the  undersigned,  Charles  Joaeph  Coursol,  Esqmre,  Judge 
of  the  Sessions  *f  the  Peace  in  and  for  the  city  of  Montréal, 
thia  twelfth  day  rf-^Sfevember^  in  th^  year  of  onr  Lord  one  tiion- 
sand  eight  hundréd  and  sixty-four,  for  that  the  said  George  Scott 
andother8,towit:  Bennett  H.  Young,  Samuel  Eugène  Lackey, 
Squire  Turaer  Teavis,  Alamanda  Pope  Bruce,  Charles  Moore 
Swager,  Caleb  McDowaU  Wallace,  James  Alexander  Doty,  Joseph 
MoGrorty,  Samuel  Simpson  Gregg,  Dudley  Moore,  Thomas  Brona- 
don  Collms,  Marcus  Spurr,  and  William  H.  Hutchinron,  on  the 
nmeteenth  day  of  October  last  past,  at  the  town  of  St.  Albans 
aforesaid,  in  the  said  State  of  Vermont,  and  witjûn  the  junsdiction 
of  the  said  United  States  of  America,  being  then  and  there  anned 
with  certain  offenmve  weapona  and  inatrumen^,  to  wit:  piatola 
commonly  known  -and  called  revolvera,  loaded'with  powdor  and 
balla,  and  oapped,  in  and  upon  one  Cyrua  Newton  Biahon^fdo- 
nioualy  did  mak»  an  aaaanlt,  and  him  the  aaid  Cyrua  Newton 
_  Bishop  in  bodily  fi^  and  in  danger  of  hia  life  then  and  there  felo- 
iîôndydidput,anracértàin^B^  tô  tte  amoturt^ 

of  aeventy  ihouaand  doUara  eurrent  money  of  the  aaid  Umted 
Statea  ci  America,  and  o£  ihe  value  of  aeventy  thouaand  dollara 


^^^ 


.m 


91 

«uiront  «nonoy  •foresjûd,  of  the  moneyg  and  property  of  the  bank 
of  St.  AJbMiB,  a  body  corporate,  coiwtitated  and  recognLwd  by  tbe 
^  laws  of  the  said  Stdte  of  Vemont,  and  the  said  United  States  of 
Ajmejncar  firom  the  perron,  custody,  and  posseamon,  and  against  the 
wiU,  of  the  gaid  Cynw  Newton  Bishop,  then  and  thew  felonioudy 
and  violently  did  Bteal,  take,  and  carry  away,  against  the  form  of 
the  sta^tes  of  the  said  State  of  Vennont,  m  such  caae  made  and 
provided,  and  against  the  feaoe  and  dignity  of  the  said  State  • 
«nd  the  said  charge  being  read  to  the  said  George  Scott,  and  the 
witnesses  for  the  prosecution,— Cyrus  Newton  Bishop,  Edward  C. 
Knight,  James  P.  Desrivieres,  Aaron  B.  Kemp,  Léonard  I.  Cross 
James  R.  Anmngton,  Charles  A.  Marvin,  George  Roberts,  Ros- 
weD  A.  Elhs,  George  W.  FairchUd,  John  McLoughlin,  Henry  N. 
Whitman,  Marcus  W.  Beardsiey,  James  Saxe,  Daniel  G.  Thomp- 
son,  and  John  0'Leary,r-bemg  severaUy  examined  in  his  présence, 
the  sud   George   Scott  is  now  addressed    by  me  as  foUows  : 
«Havmg  heard  the  évidence,  do  yen  wish  to  say  anythine  in" 
«answer  to  the  charge?    You  are  not  obUged  to  say  anytUnir 
*'  unless  you  désire  to  do  so  ;  but  whatever  you  say  wîll  be  taken 
down  m  wrifang,  and  may  be  given  in  évidence  against  you  at 
"  your  trial."  '' 

Whereupon  the  said  George  Scott  saith  as  follows  : 
I  am  a  Confederate  soldier.  ^am  a  native  of  Kentuoky,  and  owe 
no  allegiance  to  the  Fédéral  Gdvemment,  but  to  the  Confederate 
Stetes  of  Amenca.  Whatever  I  may  hâve  donc  at  St.  Albaps,  I 
did  as  a  soldier,  acting  under  the  orders  of  Lient.  Young,  an  oflBoer 
of  the  Confederate  army.  I  hâve  violated  no  law  of  Canada  or 
Great  Bntain.  « 

And  further  the  Examinant  saith  not,  and  hath  signed,  the  fore- 
goifl^iaving  been  previously  read  in  his  présence. 

(Signed)  GEORGE  SCOTT. 

Iaken  and  aoknowledged  before^ 

me,  at  the  Police  Office  in  the  I 

said  city  of  Montréal,  the  day  f 

and  year  above  mentioned.      J 

(Signed)  Chas.  J.  Coursol,  J.S.P. 


U' 


•  il 

*    /Ml. 

:  'Kl 


A 


Vit 


'If 


POLICE  OFFICE. 


PROVINCE  0¥  CANADA,  ; 
IMitriet  of  MuUrtal, 
CITY  OP  MONTRBAL.    [ 

WUHam  H,  ifitfcAiiMon,  lato  of  the  town  of  St.  Alb'ans,  in  the 
State  of  Vennont,  one  of  the  United  States  of  America,  stands 
«v««e44>efiw1àeundeMigned,Chlrte8  Joseph  ë^       ÉsquîrtT 
Judge  of  the  Sessions  of  the  Peace  m  and  for  the  city  of  Montréal, 
ans  twelfth  day  of  November,  in  tfae  year  of  our  LoS  one  tfaousand 


>■/■ 


i: 

r  11 


!!■ 


I  |V  j 


'92 

éight  htodred  and  aixtj-four,  for  that  the  said  William  H.  Hutoh- 
inflOD  and  othera,  to  wit:  .Bennett  H.  Young,   Samuel  Eugène 
Laokey,  Squire  Turner  Tefivis,  Alamanda  popo  Bruce,  Charies 
Moore  Swager,  George  Scott,  Caleb  MoDowall  Wallaoe,  James 
Alexander  Doty,  Joseph  McGrortv,  Samuel  Simpson  Gregg,  Dud- 
ley  Moore,  Thomas  Bronsdon  CoUms,  And  Maroùs  Spurr,  on  the 
nineteenth  dav  of  Ootober  last  past,  at  the  town  of  St.  Albans 
aforesaid,  in  the  aaid  Btato  of  Vermont,  and  within  the  jurisdiction 
of  the  said  United  States' of  Amerioa,  being  then  and  there  armed 
with  certain  offensive  weapons  and  instruments,  to  wit  :  pistols 
oommonly  knowû  and  called  revolvers,  loaded- with  powder  and  baUs, 
ana^capped,  in  and  upori  one  Cyrus  Newton  Bishop  feloniously  did 
make  an  assault,  and  him,  the  said  Cyrus  Newton  Bishop,  in  bodily 
fear  and  in  danger  of  bis  life  then  and  there  feloniously  did  put, 
and  a  certain  sum  of  money,  to  wit  :  to  the  amount  of  seventy  thou- 
sand  dollars  current  money  of  the  said  United  States'  of  America, 
ând  of  the  value  of  seventy  thousand  dollars  current  money  afore- 
said, of  the  moneys  and  property  of  the  bank  of  St.  Albans,  a  body 
corporate,  constituted  and  recognized  by  the  laws  of  the  said  State 
of  Vermont,  and  of  the  said  United  States  of  America,  .from  the 
pereon  and  custody  and  possession,  and  against  the  will,  of  the  said 
Cyrus  Newton  Bishop,  then  and.  there  feloniously  and  violently  did 
stoal,  take,  and  carry  away,  against  the  form  of  the  Statutes  of  the 
said  State  of  Vermont,  in  such  case  made  and  provided,  and  against 
the  peace  and  dignity  of  the  said  State  ;  and  the  said  charge  being 
read  to  the  said  William  H.  Hutchinson,  and  the  witnesses  for  the 
prosecution,— Cyrus  Newton  Bishop,  Edward  C.  Knight,  James 
F.  Desnvieres,  Aaron  B.  Kemp,  Léonard  L.  Cross,  James  R. 
Axmmgton,  Charles  A.  Marvin,  George  Roberts,  Roswell  A.  EUia, 
George  W.  Fairchild,  John  MoLoughlin,  Heniy  N.   Whitman, 
Marcus  W.  Beardsley,  James  Saxe,  Daniel  G.  Thompson,  and  John 
OLeary,— being  severally  examined  m  his  présence,  the  said 
Wilham  H.  Hutchinson  is  now  addressed  by  me  as  follows  :  "  Having 
"  heard  the  évidence,  do  you  wish  to  say  anythmg  in  answer  to  the 
"  chM-ge  ?     You  are  not  obliged  to  saj^  anything,  unless  you  désire 
"  to  do  30  ;  but  whatever  vou  say  will  be  taken  down  in  writing, 
"  and  may  be  given  in  évidence  against  you  at  your  trial." 
Whereupon  the  said  William  H.  Hutchinson  sûth  as  foUowi: 
I  am  a  native  of  the  State  of  Géorgia,  and  a  citizen  of  the  Con- 
federate  States  of  America.    Hâve  been  ah  officer  in  the  Confede- 
rate  army  since  Ajpril,  1861 .  I  am  not  guilty  of  the  charge  birought 
a^gaÎBfit  me.     I  ow©  no  allegiance  to  the  Yankee  govemment.    In 
Deoember,  1862,  waa  robbed  by  the  Yankee  vandab  of 


or  Great Britaiiij.    I  aiù  perfectly  wilKngto share  the  foie  of  my 
countrymen  andvfSllow^ldiers. 


'i'i»'  «■ 


«^^,4*i*      ''Ù^'A 


98 

And  fartber  the  Examinant  saith  not,  and  hath  aigned  ihe  fore- 
gomg  having  been  preyioualy  read  in  his  présence.  ' 

en  V      ^^^*î^     ....    WILLIAM^H.  HUTCHINSON. 
Tat^n  and  acknoirledged  before^ 

me,  at  the  Police  Office  in  the  I 

said  city  6f  Montréal,  the  day  f 

and  year  above  mentioned.       J 

(Signed)  Chas.  J.  Couebol,  J.S.P. 


POLICE  OFFICE. 


RROVINOE  OF  CANADA, 
DMrict  of  Montrtal,         ' 
CITY  OP  MONTREAL.     | 

•     Dudley  Moore  late  of  the  town  of  St.  Albans,  b  the  State  of 
yermoi^t,  one  of  the  United  States  of  America,  stands  charged 
before  the  undersigned,  Charles  Joseph  Coursol,  Esquire,  Julge 
of  the  Sessions  of  the  Peace  in  and  for  the  city  of  I^ontreal,  this 
twelfth  dav  of  November,  in  the  year  of  our  Lord  one  tho^and 
e^ht  hundred  and  sixty-four,  for  thatihe  said  Dudley  Moore  and 
others,  to  wit  :  Bennett  H.  Young^  Samuel  Eugène  Ljwkey,  Squire 
Tumer  Teayis,  Alamanda  Pope  Bruce.  Charles  Moore  Swager, 
George  Jcott,  Caleb  McDowall  Wallace,  James  Alexander  Doty 
Joseph  McGrorty,   Samuel   Simpson  Gregg,  Thomas  Bronsdon 
Colhns  Marcus  Spurr,  and  William  H.  HOtehinson,  on  the  nine- 
teenth  day  of  Octobei-  laAt  past,  at  the  town  of  St.  Albans  aforesaid, 
m  the  said  State  of  Vennont,  and  within  the  jurisdiction  of  the 
said  Umted  States  of  America,  being  then  and  there  armed  with 
certain  oflFensive  weapons  and  instruments,  to  wit, -pistols,  com- 
monly  known  and  calîed  revolvers,  loaded  wijte>wder  and  balls 
and  capped,  m  and  upon  one  Cyrus  Newton  IMp  feloniously  did 
make  an  assault,  j^id  him  the  said  Cyrus  NewiS  Bishop,  in  bodily 
tear-and  m.danger  of  his  life  thon  and  there  feloniously  did  put; 
and  a  certain  sum  of  money,  to  wit,  to  the  amount  pf  seventy 
thousand  doUars  current  money  of  the  said  United  States  of 
Amenca,  and  of  the  value  of  seventy  thousand  doUars  current 
money  aforeMjd,  of  the  moneys  and  propérty  of  the  bank  of  St. 
Albans,  a  body  corporate,  constitated  and  reoognized  by  the  laws 
of  the  said  State  of  Vennont,  and  of  the  said  United  States  of 
Amenca,  frona  the  person,  custody  wd  possession,  andagainst  the 
wiU  of  the  said  Cynis  Newton  Buhbp,  then  and  ijiere  feloniously 
fi?    violently  did  steal,  take,  and  cany  away,  against  the  fonn  of 
the  sta^tes  of  the  said  State  of  Yennontii  auch  ca8e*made  and 
provided,  Md  agunat  the  pead»  and  dignitjr  of  theWd  State;  and 
^geaaid  chtfg^bemg  read^*the  «uTDadley  Moore,^and.ihe- 
^^^^  ae  pro8ecution,-Cfyni8  Newton&hop,  Edward  0. 
Jùught,  James  F.  Desnyiere»,  Aaron  B.  Kemii,  fS^rd  L^  Ctobs. 


■'ht"-': 


\ 


!  -'. 


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II 

'I!'. 


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94 


i- 


% 


James  B.  Armingtoû,  Charleg  A.idafrm,  Georee  Roberta*  Rn.w.ii 
A.  EUifl,  George  W.  FairohUd,  JohnMShuTlSem^  N 
Whitman,  Marous  W.  Beardriey,  James  Si«e  El  S^      ' 
son,  and  John  0'I^anr,-,bem/wverX«,î^;;fi^  J-^'  ^^*"°P- 
the  said  ^^^^}^7  &reirL7'':&:^ 
"  Havmg  heard  the  evideçce,  do  you  wigh  to  Zl  !lJu-       • 

answer  to  the  charge  ?    Yoi  areCt  SgS  T^^fer 
^^UBless  you  désire -to  do  so;  but  whatever  C  M^y^^^S 

Whereupon  the  said  Duâlej,  Maare  saith  as  foUows  : 

Whatever  I  may  hâve  done  at  St.  Albans  I  did  as  a  Confod«r,.t^ 

C-aL^tG^^tta^^'^^^^--  TCve^v^ite^r iT^^^ 

And  furthèr  the  Examinant  saith  not,  and  hath  siimed  the.  fori. 
going  havmg  been  previously  read  m  hfa  presenTe.^    '       ^'''" 

Taken,  L'Sowledged  before^  -  "^^^^^  ^^^«^^ 

,  me,  at  the  Police  Office  in  the  I 
said  city  of  Montréal,  the  day  f 
and  year  above  mentioned.      J 

(Signed)        Chas.  J;  Coursol,  J.S.P. 


POLICE  OFFICE. 


PROVmOB  OF  CANADA, 

Dittrict  of  Canada, 

CITY  OP  MOI^TREAL. 

^Thomas  Bromdùn  Cdlin^,  late  of  the  town  of  St.  Albans.  in  the 
),       I^!^l^'  °°®  °^  *^«  United  Statea  of  America  sLd! 
t^^'Wf'S  ^^  "°<i«W«d,  Charles  Joseph  CoSXS 
f)?  f  lî'.  Sesaions^f  the  Peace  in  and  for  tixe  cit3  aS^' 
this  twelfth  day  of  Novémber,  in  the  yea^  of  our  LoiYoneï^d 
eight  hundred  and  sixty-four,  for  that  the  said  ThSiSS  fc^Z^„ 
CoUms,  and  others,  ta  ^it:    Bemiett  H.  Yo^,  sZeSn^ 
Lackey,^Sqmre  Tumçr  Teavis,  AJamanda  PoS  B^e   Œî 
MooreSwager,  George.  Scott,  Caîrf,  Mc])owar  WaSSe   ^e* 
Alexander  Doty,  Joseph  McGrortyL  Samuel  Simpson  Gre^  S 
hj  Moore   Marcus^Spurr,  andfiUiam  H.  fiSchins^^on  S 
mneteenth<ttay  of  October  lafit  pésk  at  the  town?8t  ÏÏko  ! 
aforesaid  in  the  said  8^^  oî  VeS^Cf>^'JZ  ^e  Mo^ 
of  thesàid  Unjted  Btetes  of  America,  being  then  îirid  t^STa^ed 
m&certam  oflFensire  weaporis  and  instràmente,  to  ml  Ss^ 


^ 


t 


I    '  - 


\{ 


96 


America,  «nd  of  thTvaJbe  oTLl^iî  *i^**  F^H*^  ètates  of 

iiKmeyaforeBaidTof  the  Zii^rry  ^T?  ?**"*"  ««"^n' 
Albai,  a  body  iwL^^ffi^S^  P^J*'*^  ^^t^e  bank  of  Str 

of  the  W  ^n?  vSItS  ïi!rl^^  bythelaws  . 

America,  f«>m  the  Ser^H^Jl  i J  ^"^"^^  ^"^^  States  of 
wiU,  of  tèe  «aid  C^ÎS^n^^  T^  possesaion,  and  against  the 
and'  violentir^d  a  tekTlJ^cï^iL  *^'''  "^^  **»«^  ^«^««îougty 
the  Btatutes  of  theS  SteVof  V^JÎ^?^'  "«T^*  *^^  ^«™^ 
provided,  and  HJx^the^ZfJ/T^l!^.'T^  ""^  '"«le  ^^ 
the  Baid  chargehitel  r^Xr.!,      ^^*'^**'®«^*1  Sta^s  and 

'     Edward  C.  Knicht    jZJ^l^   '''~^^'^,  ^^^P  Bwtop, 
Léonard  L.  S^   J,ieTR    A    '""J'"'^;,.^'^^  B.  Kemp 
Gféorge  Rober^BoeXA    Elt   S^- '  S^'fe'  ^-  ^arviJ 
MoLSiiçhlin.  nen^N  wwLr     i/^^""^^  ^-  ^«rchild,  John 

,  Saxe,  Cl  aThoî^pern^^Sd'joîLTLel  ^-^^^>  J-ea 
examined  in  hia  ptisence  SiaT;^  îî       Leaiy,--being  severallr 

"  evideL  agîi^rytïr;:^'""*"^'  ^'  "'^^  ^  ^--  - 
'l^^aX^tife^SeSr^ST'^'^^^^^^^  " 

Sta4.  I  served  unSr  the  co^LTofl'n^JorMi^^  ^"^' 
became  aeparated  from  it  at  the  baSe  ofC^tu-  ^^*°'  *°^ 
Baving  eïnded  the  Yankees  T  ioinl/T  f  ^^''°^k^«''*''«'^7- 
CMcago,  knowing  it  toTmy  dutv  to  ™,  '""*"«  ^^y^ds  It 
to,  my^tf  néver  to  désert  iKif  <«  my  govemment  as  well  as 
so^aied  United  Stat^  but  .1  Tf.  J    ^  ®  ""^  ^"fgiance  to  the 

Jhe  Yankee  Gove^ment'rVî^Yaiï^s^^^^^^  ' 

bis  peaceful  fireside  and  fSv  Sïîf  ^^Sg^à  my  father  from 

^d  njy  g™n£ather  has  C^K^^m  Kentî^^W  T4^  ' 


•  <• 


iK 


*.  '' 


■^ 


I 


m  M 


^ 


s*" 

i 


^ 


Pi  -  ' 


i:i 


wà 


,m 


96 

trophies  of  Fédéral  Tiotoriea,    I  hâve  violateÂ  no  Jaws  of  CaniMila 
or  Great  ^ritam.    Whate^f^  I  may  bave  doue  ati  St.  Altitani^I 
did  as  a  Cofifederate  officer  aoting  under  Lt.  Yoong.    Whea  I 
lefl  St.  Albaua,  I  oame  to  Canada  Bolely  for  protection,    I  entei^ed 
«  hotel  at  Stanbridge  unanned  and  alone,  and  was  arrested  and 
handcuffed  by  a  Canadian  magistrate  (Whitman)  asaisted  by  T«i\- 
ke*8.    He  had  no  warrant  for  n^  arrest,  nor  had  a&y  swôm  com- 
plamt  been  made  to  hin»  against  ne.    About  $9,800  waa  teken  firom 
me  when  arrested,  part  Confedçrate  boot^  lawÂdly  captùred  and  beld 
by  me  as  suoh,  and  part  of  my  owu  pnvate  iîinds.    I  a^k  tbe  rech 
toration  of  the  money  taken  from  me  and  my  disckarge  as  demanded 
by  the  rules  of  international  law.    The  treaty  under  whioh  my 
extradition  is  claimed,  applies  to  robbers,  murderers,  thieves,  and 
forgers.     I  am  neither,  but  a  soldier  serving  my  country  in  a  war 
commenced  and  waged  against  us  by  a  barbarous  foe  in  violation  of 
their  own  constitution,  in  disregard  of  ail  thej'ùles  of  warfare  as 
interpreted  by  oi?ilized  nations,  and  Christian  pécule,  and  against 
Yankees  too  wise  to  expose  themselvep  to  danger,  while  they  can 
buy  mercenaries  and  steal  negroes  to  fight  their  batties  for  tiiem, 
whoi  whilst  prating  of  neutrality  seduce  your  own  people  along  thé 
border  to  violate  the  proclamation  of  your  august  Sovereign  by 
joining  their  armies,  and  leave  them  ^en  captnred  by  us  to  lan- 
quish  as  prisoners  in  a  climate  unwholesome  to  timm.    If  I  aided 
in  ihe  sack  of  the  St.  Albans  banks,  it  was  beoause  they  were 
public  institutions,  and  because  I  knew  the  pooket-nerve  of  the 
Yankees  to  be  the  most  sensitive,  that  they  would  suffer  most  by  its 
being  rudely  touched.     I  cared  nothing  for  the  booty,  except  to 
injure  the  enemies  of  my  country.    Fédéral  soldiers  are  bought  up 
at  $1000  a  head,  and  the  capture  of  $200,000  is  équivalent  to  the 
destruction  of  200  of  said  soldiers.    I  therefore  thou^t  the  expé- 
dition "  would  pay".  .  I  "  guess"  it  did  in  view  of  tiie  fact  also,  that 
they  hâve  wisely  sent  severalthousand  soldiers  from  tiie  "bloody 
front"  to  protect  exposed  points  in  the  rear.    For  the  part  I  took 
I  ain  ready  toabide  the  conséquences, knowing  that  if  I  am  ex» 
tradited  to  the  Yankee  butchers,  my  govemment  can  avenge  if  not 
protect  its  soldiers. 

«^  And  further  the  Examinant  saith  not,  and  hath  signed,  the  fore- 
^going  haying  been  previously  read  in  bis  présence. 

,  (SigneJ)  THOMAS  BBONSDON  C0LLIN8. 

Taken  and  aokSowIedged  before^  ^ 

me,  at  the  Police  Office  in  the 

«aid  city  of  Montre^,  the  4ay 

and  year  above  mentionéd. 
==^      (Sigiwdj      Obas.  J.  CoîJBgcâ^  J,S3*r 


i5ft*',i.li,t 


.(«Sfi.. 


9T 


PROVÏNOB  OF  CANADA, 
Pùtrictof  Montrtttl, 


.¥■'' 


KOVUfOB  OF  CANADA,  ) 


Jameè  AUxanâer  Doty,  late  of  the  town  of  St.  Albans  in  th« 
State  or  Vermont,  one  of  tie  United  States  of  AmeS  1^1 
5ÏS'i^/''S  *^?  undewigned,  Charles  Joseph  CoS,  ÈnS 
Judge  (rf  the  Sessions  of  the  Peace  m  and  for  the  oitv  of  jCt^î' 
m"C^'  of  November,  m  the  year  ofo^Ane^^Sd 
Si  Vf^^  and  sutjr-four,  for  that  the  said, James  AleSr 
Dotv  and  others,  to  vit:  Bennett  H.  Y^aff  Samuel  Si! 
LacW  Squire  Tumér  Teavis,  Alàmanda  pSMoe  cE! 
MooreSwager,  George  Scott,  Caleb  McDowXlC;  J^^^^^^ 
McGrort^,  Samuel  Simpson  Gregg,  Dudley  MooreVELffiî 
t:  9o"»^«' Marçus  Spurr,  and  William^.  Huteh^u^d^ 
the  nmeteenth  day  of  Ootober  last  past,  at  the  to^Ts^'  \\hZ 

^^r^idllSLfstal^ofr^^^^         ^thlfuris^o'C 

^j  known,  and  oaUed  lïvolrers.  loaded  with'  ^i^er^^\X 
Wd  capped,  in  and  upon  one  Cyrus  Newton  Bishop  feloiv  dSi 

SS\S  ?^'^*'  "^i^  ^  ^^  C^  Newton  Kï^rLâî 
ZTt^^^^"^  ?^  ^  ^«  *^««  ^^  ^^^  feloJously  mZJ 
^d  a^oertwû  sum  of  monoy,  te  wifc,  to  Ae  amount  7^%^& 
«n^  doUaw  carrent  moqey  of  the  said  United  States  of^eriSï 

Sd  %/™«  '  '^  ""T^  ^^'^'^^^  ^'^  curant  min^foS 
Mjd,  of  the  moneys  «nd  pioperty  of  the  baojc  of  St.  Albans  a  b«^ 

•  SfTl*'*  conatituted  and  «copiized  by  tiSTlaWs  of X^i*s^^ 
of  Vennont,  and  of  the  si^d  Uïdted  Stotes  of  .AmericI  ft«m  «T 
pe«on,  cuatody  «d  posse«.ion,  and  ïgSt  thf^  î^ïritî 
s^rtSr^d^'^P'  *^  ant  there^So^;  S^iSSy'ïS 
^'^^\f^^y^^'t^^^^  ^«  ^°""  of  the  statutes  of  Se 
said  btate  of  Vermont  m  such  case  made  and  provided.  and  aal;«l; 

tr^Z'^'fr'^  1^  "^^  State  ;  .SXÏÏ cCge*S 
read  to  the  said  James  Aleàmder  Doty,  and  the  witoe^  for  tî! 
p,^c«faon,-Cyrua  Newton  Bishop,  Edward  a  SgC^^ 
Deanyieres,  Aaron  B.  Kemp  Leonawl  L  CroaT  TamiL  r  a'     •    ' 

wfi:^iifd''i^^h^4^^ 

b;«5T^Î'  John  McLoughÛi,  Heniy  N.  Whitman,  KuTT 
Bewdsley,  James  Saxe,  Daniel  «T.  Thompson,  andJoCoï^arv' 
■-JeuutMverally  examined  in  his  presenc^a,  the  said  James  aS' 

__,       «w  uuv  oDiiK«i.to-«av^aa»tlmig,  untess  yon  desi»  toUo  so  : 


I^whateve/;:j^Ç^i!^ 

given  in  évidence  «gainst  you  at  your  trial."  ^  ^ 


Jt 


f- 

i' 


mih  '     l 


4,^       ^.,     ^. 


A.. 


s'    h^.' 

I' 


'; 


98 

Whereupon  the  s^d  Jame»  Alexander  Doty  sûth  as  follows: 

I  am  a  Çonfederate  soldier.  What  I  may  hâve  done  at  St.  Albans. 
was  by  oraér  of  JLieutenant  Y<(ung,  an  oScer  in  the  army  of  the 
Confederate  StaKs. 

And  fîirther  the  Examinant  saith  not,  and  hâth  signed,  the  fore- 
going  having  been  previously  read  m  hu'presence. 

(Signed)  JAMES  ALEXANDER  DOTY. 

Taken  and  aoknowledged  before^ 

me,  at  the  PoKce  OflSce  in  thëf  ( 

said  city  of  Montréal^  the  day  f  ; 

and  year  above  mentioned.      I 

(Sifflûed)        Chas.  J.  Coursol,  J.  S.  P. 


PROVINCE  OF  CANADA, 

JHitriet  o/MontrenL 

CITT  OF  MONTREAL. 


POLICE  COURT. 


Samuel  S.  Oregg,  late  of  the  town  of  St.  Albans,  in  the  State 
of  Yennont,  one  of  the  United  States  of  America,  stands  charged 
before  the  nndersigned,  Charles  Joseph  Coursol,  Esquire,  Jndge 
of  the  Sessions  of  fte  Peace  in  and  for  the  city  of  Montréal, 
this  twelfth  day  of  November,  in  the  year  of  our  Lord  one  thou- 
sand  eight  htmdred  and  nxty-four,  for  that  the  said  Samuel  Simp^ 
son  Gfegg  aod  others,  to  wit  :  Bennett  H.  Toung,  Samuel  Eugène 
Lackey,^quire  Tumer  Teavis,  Alamanda  Pope  Bruce,  Charles 
Moore  Suager,  George  Scott,  Caleb  MoDowalI  Wallace,  James 
Alexander  Dotr,  Josepi  McGrorty,  Dndley  Moore,  Thomas  Brons- 
don  Collins,  Marcus  Snurr,  and  TTilliam  H.  Hutchinson,  on  the 
nineteenth  day  of  October  last  past,  at  the  town  of  St.  Albans, 
in  the  State  of  Vermont,  and  vithin  the  jnrisdiction  of  the  said 
United  States  of  America,  bebg  then  and  there  armed  with  certain 
offenmve  weapons  and  instruments,  to  wit  :  pstols  commodly  known 
and  called  revolvara,  loaded  withpowder  and  balls,  and  capped, 
m  and  upon  one  Tynis  Newton  Bishop  feloniously  did  make  an 
assault,  and  him  the  said  Cyrus  Newton  Bishop  in  bodily  fear  and 
in  danger  of  his  life  then  and  there  feloniously  dm  put,  and  a  certain 
sum  of  money,  to  wit:  to  the  ^mount  of  sevenly  thousand  dollars 
current  money  of  the  said  United  States  of  America,  and  of  the 
value  of  seventy  thousand  dollars  current  money  aforesaid,  of  Ûie 
meneurs  and  property  of  the  bank  of  St.  Albans,  a  body  corporate, 
constituted  and  rect^iized  hj  the  laws  of  the  ma  State  of  Ver- 
mont,  and  the  said  United  States  of  America,  from  the  person, 
custody,  and  possession,  and  agûnst  the  will,  of  the  sud  Cyrus 
Newton  Bidiop,  then  and  there  felonionoly  and  violently  did  8t«alr== 
take,  and  carry  away,  against  the  form  of  the  statutes  of  the  said 
Stite  of  Vermont,  in  such  case  made  and  provided,  and  against  the 


**•' 


y^::ï 


1-         (!..>.    S».l»ÇtJ 


"•ê 


r{. 


99 
Anmii(rt(ai,Ch»lMA  vir^^'  ""™^  I"  Cnw,  James  H. 

"your  triar»     *'  ^    ®  ^^^"^  "*  «^^«''««  agaiMt  you  at 

WhereupoB  the  sàid  Samuel  Simpson  Greaa  saith  as  follnw» . 
I  was  bom  and  reared  in  the  State  of  KentackT  ^  ïï ?o 

federate  soldier.    My  tenn  of  service  ^nn?t«ly'-  "^^^a^on- 

me,  at  the  PoKce  Office  in  the  I 
said  city  of  Montréal,  the  day,  f 
and  year  above  mentioned.        J 

(Signed)        Chas.  J.  Coursol,  J.S.P;- 

PROVINOB  OP  CANADA,  ) 

Dirtrict  of  Montréal,       S      POLICE  OFFm? 
CITY  OP  MONTREAL.    5  ^^^'^  yJXSiXjh. 

^^^^^'^^Zi^^Z^lf't^^^  -  the 

ch^rged  before  the'  tmderri^ed,  (SSL  JÎ^V^ctZT^^  "^^ 
Jadge  of  the  Sessions  of  the  PekceTL  fTjL  «^Tî^V?'^"^' 
this  twelfth  dav  of  NoyemW,Ttte  ye  J^^^^^^ 


lût  ii^  .Tt  X.  ,  "*^^'*"  TiMiace^  ^«Boer  Ate 

m..to.nth  d.T  of  OohL  C^puCTiii"^^?'  ViJ^" 
-Wd.  in  tl^,  ^d  s..*,  of  Voîï^kC'JS'JSr  âl/Jii.^S 


|i*aor'(U.*x  >v  1    ,«■'!-■ 


;-#- 


'i  J 


iif 


(tt^iSj^'^và'^-^-ïa«&&j  tii  it.;  i!w  ASk'ïkJlf^fc''. 


%        1 


if 


100 

of  the  said  United  States  of  America,  being  then  and  there  armed 
with  certain  offensive  weapons  and  instruments,  to  wit,  pistols,  com- 
monlj  known  and  called  revolvers,  loaded  with  powder  and  balls, 
and  capped,,  in  and  upon  one  Cjrus  Newtoii  Bishop  feloniouslj  did 
make  an  aâsatdt^and  nim,  the  said  Cjrus  Newton  Ëishop,  in  bodily 
fear  and  in  danger  of  hia  life  then  and  there  feloniously  did  put, 
and  a  certain  sum  of  monej,  to  wit,  to  the  amount'of  seventj 
thousand  dollars^  ourrent  monej  of  the  said  United  States  of 
America,  ai^d  of  the  value  of  seventy  thousand  dollars  onrrent 
money  aforesaid,  of  the  monejs  and  property  of  the  bank  of  St. 
Albans,  a  body  corporàte,  constituted  and  r^ognized  by  the  laws 
of  the  sud  State  of  Termont,  and  of  the  said  Unitea  States  of 
America,  froin  the  person,  custodjr  and  possession,  and  against  the 
will  of  the  said  Cyrus  Newton  Bishop,  then  and  there  felonioosly 
and  violently  did  steal,  take,  ^d  carry  away,  against  the  form  of 
the  statutes  of  thet  said  State  of  Vennont  in  such  case  made  and 
provide4,  anfiafiainst  the  peace  and  dignity  of  the  said  State  ;  and 
the  said  charge  being  read  to  the  said  Sq[uire  Tumer  Teavis,  and 
the  witnesses  for  the  proseoution, — Cyms  Newton  Bishop,  Edward 
C.  Knight,  James  F.  Desrividres,  Aaron  B.  Kemp,  Léonard  L. 
Cross,  James  R.  Armington,  Charles  A.  Marvin,  George  Soberts, 
Roswell  A.  Ellis,  Georgfa  W.  Fairchild,  John  McLoughHn,  Henry 
N.  Whitman,  Marcus  W.  Beardsley,  James  Saxe,  Daniel  G.  Thomp- 
son, and  John  O'Leary, — being  severally  examined  in  lus  présence, 
the  said  Squire  Tumer  Teavis  is  now  addressed  by  me  as'foUows  : 
«  Having  heard  the  évidence,  do  you  wish  to  say  anviidng  in  answer 
"  to  the  charge  ?    You  are  not  obliged  to  say  anytbiag,  unless  you 
"  désire  to  do  so  ;  but  whatever  vou  say  will  De  ta£«n  àHmn  in 
"  writing,  and  may  be  gîVen  in  eviqence  against  you  a|  your  tikl." 

Whereupon  the  sud  Squire  Tumer  Teavis  saith  as  follows  : 

I  am  a  native  of  Kentuoky,  a  soldier  of  the  Confederate  States 
army.  Ijoined  thesûdannyontbeârd  of  September  1862.  I  owe 
my  allegiance  to  the  Confederate  Government,  and  not  to  the  infoi- 
mous  and  tyrannioal  Yankee  Government.  Whatever  I  may  hâve 
done  at  St.  Albans,  I  did  as  a  soldier  of  the  ConfederatOi  army  ; 
not  on  my  own  resjwnsibility,  but  in  obédience  to  <^e  (xàera  of 
lient.  Young  of  said  army.  I  hâve  violated  no  law  of^Great 
Britain  or  Canada. 

And  further  the  Examinant  saith  not,  and  haUi  signed,  th0  fore- 
going  having  been  previously  read  in  his  présence.  \     -? 

(Siffiéd)  SQUIRE  TURNER  TEAVIS. 

Taken  and  aoknowledged  before  ^ 

me,  at  the  Police  Oye  in  the 

swd^cîl^  of  Monlteat,  the  day^ 

and  year  above  mentioned. 

'^  (Signed)      Chas.  J.  Coursol,  J.S.P. 


1 


101 

upon  the  counflel  for  the TSd  S  «^3^^  î*  ^°'*  ^^'^'^  «il 

other  aide  had  cloeed  thel  £K  1  .  ^I-  «««««««en  on  the 
the  jttdgment  ef  the  CoS'  beST  hlî'^n  î^  '""'  "^^  «^^a^^ 
witih  other  cases  agains'^e  pS^n^"*^  '"^'^  '^P^  *«  «^  ««  ^ow 

dinl^'dTsis:^^  îT^chZi^st^r'^  «^^7  -*-- 

with  no  favor.  What  wm  în  il  ^*'r*r"ï^v*^T''% '«ol^ ^F» 
What  case  did  l^hlm^M^r^Tf't^^  ^^  ^  appKcation  ? 
counsel  for  the  Sn^  8ho.?S  «^1f  *^  IT^""  ^*  ««^«^  *hat  the 

Albans  bank  ?  When  Z  ff  f .  ^  ?*^^"^  ">«*,  or  the  St. 
bank  were  under^n^d^r^^^^^^''^^^  *H^  National 

connsel  for  the  defenee^hat  'afi  T^  ^*™^^  ^derstpod  hj  the 
with,  «nd  that  after  ÎCwe«  cwî  V"''  ''"'?  ^  ^  î^^^^^d 
upon  to  make  their  deîl^^inZ^}^îc'^^^  f'^à  be  called 
cases  of  the  two  banS^  HP^^  ^^^  tmderstandjng,  the 
But  altfiough  S  ^tL  îLwK  ^"^'"'^f  ^«^  simultaneSaly; 

order  to  pS  Suives  in 'pSs^orr^l  '"  '^'  ^*«^  «<ï«'  ^ 
defence,  Md  discoyer  tLïï  S     ^V*^  *f  pnsoners'  means  of 

that  ià^  mearcluld  not  bTt  rfA'"*^  "^  ^'^  ^^'^ 

rthe  Court  to  com^i  thf  .Î2^  subséquent  case,  no^Talled 
distinct  wJdersŒl  b«ft!irl**' °^"  *«^  ^'«''««ce. 
defence  was,  «lat  X^es  wÎT.  k*^'  prosecution  and    the 
had  already  Sd     HisXnorS.  T^^"^"  ^""^^  ^*'  ««  ^^ 
correctnessof  the  assertion.  înH  *».   ^"'^I®  Ti"  *  ^*°e8«  of  the 
fact  w»8,  that  tteTo  is  of  1'  T^ÏÏL^^^^^^  «^  '^' 
Albanô  wereprooeedrd  S  at  tbî  J^^  driferent  banks  at  St. 
the  defence  Là  ÏÏe  ^  obT^H^!  T'  ^f  ^    ^«  ''°^«ï  for 
caUed  upon,  althoS  afthe  tim«  .J'^'\*'  "^"^"^  ««««  ^«^ 
Andnowbecauwofenî  *î«-         the  first  was  not  half  finished. 
other  JeSdtSsidetoenf^r'  '^'^  ,^  ^e  finishedrthe 
useless  for  Z^T^  uAT'^'J^^T'-    I*  ^««îd  be 
Belves  and  the  cSurt  ^d  to  fi?2r  »^'T*'  *"  ^î'^^'  *^«°»- 
défonces,  especialIywC  theî  hS^Î  J  m^i^T..^*^  ^  différent 
defence  in  CmeJlIT(meifo^,^t^^  ^  o°e 

for  tte  acoused  wS  hmST^l^  to  dl'T'-  ?/  ^-'^^^ 
reaionable  time.  On  SatoX^-T-  *^,/''<*«  *heir  defence  m  a 
had  ngi^wd  upon  aAth^^ilT^^^^^^T^  ^^^  «ides 
ditionîof  it.  *X  fact  Xê  ^un*,?  fh?r^***'î  ^^^^  *''«  «on- 


/ 


/  ';ii. 


\'iS^-^>.;^:^ÂA^ 


v. 


m 


f^ 


102 

and  he  was  exceedindy  surpriaed  thia  moming  to  fiad  that  they 
were  to  be  teken  by  the  throàt  and  required  to  proceed  with  the 
defence.  He  did  not  think,  after  the  facilities  which  Ûiè  counsel 
on  thw  side  had  afforded  to  gentlemen  on  the  other  aide  to  co  on 
with  theircaaes,  that  the  underetanding  with  which  the  cases  com- 
menced  ahould  be  violated,  even  if  tle  agreement  of  Saturday 
should  be  broken  up.  In  conséquence  of  this  understanding,  Mr. 
Laflamme,  one  of  his  confrères,  had  left  town,  and  he  did  not  thhik 
it  nght  or  fair,  that  it  should  thus  be  set  aside  by  the  counsel  for 
the  prosecution.  . 

V  ir  •  ^*^'^^*  <*»  *^«  par*  of  *e  prosecution^  would  say,  that  he 
had  been  présent  several  days  and  heard  no  word  of  such  agree- 
^ent.  It  waa  certwnly  not  known  between  the  gentlemen  repre- 
sentmg  the  United  States,  and  the  gentlemen  for  the  defence.  If 
there  waa  any  such  a^eement  it  must  be  between  the  gentlemen 
'  ''®Pi[?^»_Jï»«  ™e  Canadian  Government  and  those  for  the  defence 

•j  j  ,  "^^  ^*^  ^^^^  ^  *^®  «*^®  since  the  beginning  and  con- 
sideredhe  represented  the  United  States  generaUy  as  m.  Ritchie 
did.  He  (Mr.  D.)  could  therefore  state  that  he  was  utterly  op- 
posed  to  any  attempts  made  to  obtam  delay.  The  prosecution  now 
declared  the  case  of  the  St.  Albans  bank  closed  ;  but  they  did  not 
wish  to  press  the  gentlemen  on  the  opposite  side  as  to  time.  The 
prosecution  wished  those  gentlemen  to  name  the  day  on  which 
they  would  go  on  with  the  defence.  As  to  the  underetanding  of 
Saturday  mght,  if  the  defence  had  been  led  astray,  and  if  on  that 
account,  ajiv  of  their  witnesses  were  absent,  they  would  be  entiUed 
to  reasonable  delay  m  order  to  get  the  witnesses  back. 

Mr.  Johnson,  Q.  C,  said  that  nothing  would  give  him  greater 
pleasure  than  that  there  should  be  an  understanding,  so  that  delay 
would  be  avoided,  and  the  case  faciUtated.  But  tie  idea  of  the 
l.rown  of  Enghmd^making  an  agreement  with  criminals,  was  a  thine 
totaUy  unheard  of.  He  could  not  enter  into  any  agreement  with 
the  pnsonersfor  delay;  and  the  reason  was  that  such  an  agree- 
ment would  npt  be  bmding  on  the  prisoners. 

r  ■^T\?'''rr^^^'  ^'  ^.— What  has  been  stated  by  my  leamed 
fnend,  Mr.  Kerr,  is  perfectly  correct.  When  the  exanunation  of 
witnesses  commenced,  there  was  an  understanding  to  the  eflfect 
tj^ftt  the  examjnations  in  aU  the  charges  should  be  taken  before  we 
enlered  upon  the  défonce.  That  was  the  understanding  on  ail 
hands  ;  atod  my  leamed  fç^ep'dS  on^e  other  side  had  at  âat  time 
no  other  course  m  contenjplatipii:  It  was  suggested  to  your 
Honor—or  rather  /our  Honojf  originated  the  idea— that  it  was 
better  that  the  portion  of  the  évidence  of  each  witneas  appUoable 
toai^^artjfiHkreharge,  should  beta^ 
that  havmg  référence  to  other  charges.    For  instance,  if  Mr 


103  ; 

denoehecouldZS^g^^ 

opposite,  they  ?roceeLrp2if;^>  *î^  ^"^^^  ^'^^ 
witnesses  giving  evidencra^^L?;^  r.u^^  '  «^°»«  «^ «»<«e 

of  good  effected  in  thus  kèS? ti:.     •!'®  ^-  ^^^e^  a«reat  deal 
weU  defined  and  disS     ^^         évidence  m  each  charge  so 

and^'r^'  t'^l^Z  f  '"  î??'^'"^°*  ^«*^««»  ^^^  Crown 
.  ever,  and  thé  ZisoL^Z^n^  ""— f  ^  ^?  ^*^  *l»«  «««^  whî? 
they  are  guilt/«  Sed  %.TTf  "^^'^  '"^  Wa-even  if 
gularily  of  procédure  &  h^^T'^""  ""f  ""^'^^y  «»«  «^  'e- 
upon  ;  -^nd  dl  par£  S  Lt^T  ^T''  Vrovince  U>  décide 
ceeded  with  thew^2  k  a  Œ«?  T'  f^"^^'  ^*^i°«  P«>- 
is  submitted  thTt  Ct  mod«  tï:f  1^'^*^^  convenient  mSde,  it 
And  there  is  nTi^aTn  f^l'^S^fi^"*  -fT  ^.^^^Pa^ed  from. 

The  accused  areTi^L  S^«  ^/'  ^^*  the  conteuy. 
seven  times  extradited?    ThrobiZ  n? ♦î  ^''^l' '  ''"*.^^  *W  be 
accused  across  ttie  ^Lr-^l^dTou! ^T  '^«*'  ^  *°  ««*^« 
would  warrant  tàeir  eSition  wliîe  ni? n?  S  P'«^<that  one  *. 
no  more.  To  aU  thèse  cW«»  w^Ît    ^^  °^  *^®™  *^  ^o^Jd  do 
aud,  in  fect,  the  e^ZceS  f.l  JT  'Ï^  «"^«^«^««e  ^  make ; 
charged  are'  acts  c^Sld  b  ^^T"  '^^'''  ^**  ^^  «»«  off^^ces 
only  an  incident.  TSnTt  u^d^S^S^T^iT^ch  each  act  is 
carried  on  by  the  Cro^  0^?!?^ tt  •*  J  o.*''®'  ^  prosecution  is 

whichever  o/Z,  ^oTutotsït  i?*t'  ^°'''^^'^*  '  ^^ 
prosecution  be  adopted  to^^h  1  "*»  "^  *^«  proposition  of  the 
to  make  out  th^Snt  ^TJ^  Beparately,  and  if  they  faU 
be  taken  on  the  nï^hlTZ'^i  "'T?  T^'^^*  "^  ^^«  ^ 
évidence,  and  to  ffToîeîX'  ï?  ^®  "^  t^  ^^«  *»  ^™»g  "P  oii 
Ae  charies  ie  ZS  SlT^'^r"^^.  *«»^'  and  so  on  tSl  dl 
a  rate  ofl^eS^"^^  ^SÎLT  "!  ?«*«*«?fa/d-  At  such 
whether  iïnocent  ofnS  wlSh VISIm '^  u"*  ^^  *^'«^  «'O'^th». 

The  distinction  Swwtf  Si«fi*^^^  *^*.  "'**"*io»- 
iB  an  obvions  om     iPS,^  Z.^^  ^"^^  ^""''^^^ 
crimes  committed  in  CanÏÏTthTw^ÏM  i^?*m  °^«^  ^^  ««^«» 
Wte  if  ti»ey  were  foî^ty^X^t^d^^*  tî^^^^  P'^" 

-t  .s  fa,  as  this  tri&^c^ïc^l^tVfi^  S^  tC^^^^^ 


?5 


î; 


■  .        ^' 

IHi 

-î,.    #4P«sr 

\         î"'  f 

■M 

'fi^M 

1^ 

'1.      ^^ 

* 

! 

liWîià'^&ât^.i.'iC^^jS-  .^.i^«A 


\  l 


V' 


If 


104 

mitted  upon  one.  Ail  confogion  may  be  avoided  br  takiiific  the 
charges  together,  and  thén  we  w»]  sabmit  our  defenoe,  whioh  reete 

2^  ^"",?  ''"'^L  ^*  ^*^*  *****  "*»  «nneceMary'oroea^xami- 
nation;  we  hâve  thrown  no  obfltacles  m  theway;  andwe  now 
désire  the  case  to  proceed.    Let  tbe  whole  of  the  charges  be 

&  "^'  "^^  ***  ^'"^'*  ""*  ^  ^^y  ^*  ^  <*«- 

iTon.  Jlfr.  iîow,  ^.a,  coôtended  that  the  defenoe  shotild  noir 
nof"«*St  h!Tvi'"A'*î  this  course  being  adop(»d,  the  oase  wotild 
not  oûly  be  facilitated,  but  the  interests  of  justice  subserved.  If 
the  pnsoners  are  committed  on  this  charge,  no  further  enquiry  is 
necessaiy.  If  they  are  dkcharged  on  the  merits  of  it,  it  Would  be 
nseiess  to  proceed  on  any%ther. 

Mr.  Dwîm.— W«  wiU  answer  that  when  the  i^me  oo^es. 

At  the  opening  of  thé  Court  at  two  o'dook, 

Jitâffe  OowsolMià:  Now  that  the  voluntar^  ex«amfi«bn8  Hâve- 
been  closed,  I  desu^  to  state  «hat  I  in  no  way^ecogni^e  this  pro- 
ceeding  as  tegular  or  légal,  und  do  not  wish  tfiat  itîhould  be  Jon- 
Mdered  ae  a  nrecedent  for  the  other  case».  Theroluntary  examina- 
tioM  were  taken  béoanse  Mr.  Johnson,  as  representing  Ôiè  Crown 

;!i^-îî^r^'**;**^  ^51  \**  ^  *"**^°  ««»o««  d'>«S»  as  to  «lé 
necesrà^  of  it,  and  would,  the(refore,  wish  itr  to  be  nndeMtood  that  I 
^ve  no  legaHpnnrttt  as  to  whetherthe  voliintary  examinAtion  of  the 

îhe''*?!^'^!;  tfcjT^'  "^  ^  8t*M«te  to  gire  •fiè^t  to 
the  litteadîtion  Tieaty,  is  a  p«)per  prooeeding  or  not.    Thon 

îiif  %!!^'*^''"^*ï'*  **  K^"^""  ^  ^^  *«  «*'<«M«<1  »  »w«wnable 
•  ffiIïJ*r*ï*^i*.*  **'**'  **^**^  ««oowiing  that  delâir,  I  mus» 

pt^i^inMy  objections  to  urgé  as  to  <he  proœedings  in  the  8t. 
jUbaas  bank  o^e.as  tiie  nature  ofth<^ objections  if^ere  are  any 
TS[J^  Tf°^  '^  ^y  ^"^^  ^  proà«dure  in  graûting  the 
de^aèkédfOTontheïJtetofthedéfisnce.    The  disposai  <rf  thèse 

^,MidtodiipÉteeftboBeniàtlett«i^  Those 

^Î2ï^î?l!12k!?^*"f"*^  *"  to  aispenSewiSlîe  nbceMity 
of«tfy  defeneë  V^ttWer,  ànd  npën  this  pôfet  I  mnst  be  Mtlslled 

b^wlçaat^iddiyjfcrâdé^nôôttntoithfetnerfts.  Itisneeeft. 
fl«7jkÔe^ifit.tteéteéfthepubKèÉJrvîce,for  thè  peace  «iid  twai- 

Bpeediiy  as  posâible,  haying,  of  course,  due  regard  to  the  intefêsts. 


106 

av«œrbi^tbt?CïSSVb^?rjLf  ?"'°^^  objection  was 
a  Httle  tiie  wet^^  ^  P"*P*^  ^  »°«^«'  *«  question  if 

<tfra,â^c*fc  dénature 

f^f^^BT&^7tiSi''^Tl  *^  *^*T'  "^"'^  notpossibljr 
«^«^yl  2;;^d'^^^^^^^^  SJî  «;^°f^  of  ti.e  thatshoulJ 

pretb^o5Jil**^enSÏ  '^d  ^^Tt^  ^^««^  ««^^  «- 
of  that  dntV  woiddnol!  «^  A  •     ï^*®**  *^*  ^'^^  perfomance 


.,[ 


^f     •« 


c^;^^ro/sJ^^^ 

^t  one,and  one  without  whilu  woï&tîS_'^Jïïr- 


lait  one,and  onT^Sor^Tu  »    u  u    «*?^*«  an  impor- 


:j 


106  ^ 

sions  of  the  Treatjr  and  the  statute  to  give  effect'to  the  Treatv 
the  same  Darticularity  waa  roquiwd  as  ifan  mdiotment    The  w«- 
rant  ahould  show  ihe  offence  cOmmitted  by  thé  i>t^nL  in  nSÏ^ 

wno  was  the  person  robbed,  and  whoee  were  the  efiects     The 
learned  jendeman  having  oited  auUïority,  went  on  to  «y-  ^ 

Zn  St  il?l'''lf'^K^*  *^*>  *^«  ^^"^/  «^-««"^  «^ 

Dank  ot  St.  Albans.    New  the  question  to  be  dedded  waa-^had 
any  évidence  been  brought  forward  to  show  that  S  w  JStn 

DMned  t  He  ^ffirmed  there  was  no  such  évidence.  What  had  l4en 
shown  was^  tibat  an  act  or  incorporation  had  been  Sven  tolhe 
Président,  Ihreotors  and  CompiTy  »  of  a  certain'  bSk  Ther^ 
was  nothing  to  substantiate  the  fect  that  the  S  ofSt.  mZ 
was  the  insfatution  meant  in  the  incorporation  of  Tcertair"  pSS 
dent,  Directors,  and  Company."  It  was  hardly  neceSïïy  to  dte 
auaionties  to  prove  that  no  corporate  body  couîd  he^ed  in  .m 
llT«r^*'  '^''P*  ^  *^'  P"^!^  ^'^  ;  in  fact^TTint  wS 

the  existence  of  any  institution  oould  be  recoghiaed.    InlSs  CMe 

hîii  nP  .5^iL  t^^^^  •*¥*  *^  *^  argument  had  been  applied  to  a 
bUl  of  indictment,  it  niight,  perhaps,  hâve  some  weight  ;  CpoUed 
S.Lriîr"^  investigation  of  &  nature,  it  coujftve  no  ÎC 
ïïiere  was  a  vast  différence  betw^n  a  simple/^vesti^tiT  of 

«jJ^^u  ^"^""^^  ^^  *^*  *^«  remarks  of  Mr.  Kerr  nmrht  hold 
f^i*^Vî^"'"  were  hefore  tiie  Couiïon  anÏÏdictSforan 
offence.  But  thej  were  not  in  that  position,  and  this  was  rimriy  a 
prehminwy  ^amination.  If  errors  l^bW  made/they  iSd  K 
rectified  by  the  évidence,  and  the  Court  could^'Serwctify 
Tm^our        ^  <^ommi^.nt,  if  such  a  com^tmènt  ffi 

tn  5X  ^'  "^^l^^  "^®  application  for  a  delay  of  thirty'days 
to  enable  the  pnaoœrs  to  obtain  the  évidence  necessary  LU 
defence  ;  and  m  support,  of  the  apriicatiSh,  read  the  followinir  «S- 


w 


SiF^i^ËâèâB^  Jh^J^tà-jii^^^^^^ 


i^\f}''%iSi: 


107 


■S 


I' 


■O* 


PROVINCE  OF  CANADA,  )  ;  " 

^o^.tl^.i!rTo''4x,.  1     ^^^Ï^E  COURT. 

their  feUow  X^e«  btL  ^T^T  .?"«>«««»  and  on  behalf  of 
dépose  and  C  KdetnTnte'A!  T"""^"^ ^«^'^ «^^™'  ^^ 
.       with  the  offence  now  under^rvefti^i?'''"'"''  P™?°.«"  «^«^««^ 
whioh  is  necesBarv  a^  m*i  J!i  TÏ  °  "^"ï)?''®  ''^''^^  testimony 
are  unable  toTrSTin  Mw     ,*°  th«r  defence,  and  which  they 
désire  to  proveÏÏ^  prfve  S  '^  'T  ^i^T ^-    ^hat  ïej 
^  requisite  Lden^e,  STe/onrof  thf  n^'^  '^'"^  *^  P.'^"^  '^' 
*'  is  an  officer  or  aoldler  of  S  oJL     *^^,Prw<>ne.«  now  in  custody 
America,  duly  eSù  L^LT^  ^^  the-Gonfederate  States  of 
their  te4  o^sSl^'^ït;'^^^^^ 

prove  and  can  nrove  if  fîm»  »1  «ïi^     j\.^  ■'^°**  **^®J  a^so  désire  to 
îhis  déponent  E;t  H    yl  JTl^^r  ^''  "^^'j^^,  that 
day  of  October  Iwt   an 'offin^^V  A*^"^  '''"  °"  ^^  imieteenth. 
StJtes  of  America  Lldh>^^*r   °^  ^^  -^^^^  '^^  *^«  Confederate 
tenant  i^  SZ'^l  mf^J'HTr^''!  ?1  ''^  °^  ^*  ««"- 
of  the  priaoners^Mdyln^^^^^^^  Sd'nTi'^.^^T  ^u^"^^*«'  ^^ 
for  spécial  se^ce,  imXTe^.  au£nt  f "^  T^''^  "°^^^ 
govermnent  of  the  sS  ConfederiT  £f.  *^  .t""  Ç^^"  ^J^  *h« 
taiy  for  tixe  War^^eS  rel^Xa^T^  *?'  r^^' 
to  prove  and  can  nrovTTHmn  t      n      .    ,  ^^^^  «^  depu-e 
po««,  tfiat  ev^  acTL   fî^^  be  ^owed  them  for  that  pw- 

^on  the  Sroftctoberïf  afsî  A^^  ''•  "^^  '^  ^'^ 
Vermont,  was  so  done  Sr  «mîl       *"  ^^'^'  '"^  *^«  State  of 

from  the  said  covSe?t  TnZf^  ^  .?^'?^  ^'f^  instructions 

directed  by  the  Srv  ^1^^  «'te  were  duly  authoiised  and     . 

acting  miflT^Z^T^^?''  f^  Confederat^  States 

com,5tte(i^»d  perfomeTi^  coSZl^^Zr  *^*«  ^^  ^«^^ 

dents  bv  whicj.  Sriretrtï- td'tftîï'  P"^" 

more  than  justified  bv  the  a«te  Af  a^«     i     '  f"**  ™**  *^®7  ^^re 

vi^  and  aider  Aeôrde«^?  L^^^?^^  *^^«  ^  ^^  ««i^- 

U*ed  Stetes,  and  a«1^SliaL?  rof*?""^  Government  of  the 

iicto  of  Aese  deponeîte^d  îf  Â«  nî»,!"'^  •***^-    ?^*  '^^  ^^ 

nenta  ab  inforSImd^lieve    b^î"!  ^'^'^r  ^T^  ««  ^«P^" 

Govérmoent  of  the  sS  cSfedLte  ÎJ? P^^^l^  .^^  '^J^  *^«-  «^ 

&nnitv  with  instruoC  sH^e^ed  ?î"k"f  ^^5^^^"^  ^  ««^■ 

.eat  for  a  safe  condïcT  ^^^^^^^^^^ 


\ 


14 .4^ 


'&'^fèc^'.AMû-,':^v.*-<j- 1 


ife^'Sfci&Aft^^U^-î'* .  -'i-<,'v 


w-ij5  IV^rf^^ïl" 


108 


/ 


é 


M  ; 


in  the  èaid  Oonfederatè  State»  for  the  doouinentary  and  other  eri 

were  grtoted,  the  said  évidence  could  be  obtained  in  eiirht 
or  ten^day»  bnt  as  the  same  h«  been  refuaed,  a  «,ri^  Jat 
east  tfurtj  daye  wiU  be  m,ui,^d-to  enabte  (he»;  de^^n-^tg  anl 
he  other  pnponers  toobtain  such  Widenoe  bv  other  mï^  ând 
^Itlr-  PtT*  of  ti"«  than  tÇe'BaH  period  Q  thirty  d^;  Tm 
be  iMufficient  to  enable  them  to  ^bttin  tÊe  eamer    Anà  dSente 

them  to  procure  the  évidence  necessarv for  their  defence  suchfTvî 

■  ilZ..V^A    f    TT  "^<*"»«««ce  weHb  accorded  to  theri^çuch 
as  theynow  déclare  to  be  neoessanr  ;  and  that  if  hy  reaaon  of  the 

T\fâ^  "^T^  ^"^^  to  ^btaTn  such  évidence^  S  defence 
Bhouldjje  imperfectly  established,  apd  they  should  ^^^i^ 
dehrered  to  t£e  eipissariea  of^e  Fédéral  oîvemmént,  B^hTo,^ 

the  «eoutio^,  on  the  pretenoe  thâtiWfïave  CQmnûtted  crimS 

«r^JK-i;  xf''ïu"^°?f  '  *^"*  •'»  waKty'becaiwe  they  are  thV 
ZTJa  H  "'^ÏÎ"?  Govemment,  èn^ged  in  warfaw  agai^t 
?  '*S!  ^^-  ***  govemment  deBW»  to  wreak  ven^e 
npon  them,  whioh  isneither  justifiable  by  the  U^  of  war  TTv 

(Signèd)  BENNETT  H.  YOUN< 

T.  B.  COLUNS, 

Bwom  before  me,  at  Montréal,  this  / 
^  .15ih  day  bf  November,  1864.      j      . 

(Bi^ed)         Ohas.  J.  OouRSOL,  J.8.P.  ' 

9^mitted  to  hÎB  Honor  that  the  prisoners  Bhould  Be 

nË*  dftwi  fJiAiT  preyed  for. 

>  paJr|iOf  the  Crown,  took  this  affidavit 
dewred  thirty  daya'  delay  to  pKxmre 

*tae  <iat  mEn^dand  hère,  in  the  case  of  erii4 


alloirad 

Mr 
to  mean 
évidence, 
ftrst  tkne 
It  was  qvàëi 


m 


i,«».».u*ÎJ     ri-  '-"«««la  ana  nere,  in  the  case  of  erime 

SSIISL!!'"  "^  iT^f^*  ^  n»«4iBtrate  inight  ,S 
did  iS^ourse  applj^  to  crime»  «nder  the  ^ÇT^SU^ 


s\ifirf   «-  Si^  I 


■t'tk  - 


y 


.  109    • 

position  ocS  bî  1^  t?^  Prooeeding.,  had  enyelopéd  the 

municate  whh  the  cSl?/f>.r   *^  f"'*''^  *•*«  priwnei^  to  oom- 

no  n^t  wh'atev«r  to  interforl  it^-     ^^  <>' tt»t  of  C^doda  had 
Crow^^  hère  in  the  t^nSnw/'X:  T^  *^V»4^<rf*he 

gnweful  de«poti£tt  on  lU  ^.ï  ^/f  ^^^*'o»  «f  «»«  imct  (fii- 
g«^tK«  he  referred  to^  Se  etrw^ï  '^'  ?  ^^^  "^  ^^<^  alle^ 
da,^e  would  not  sav ZiîS /x.        ^  Goverament  of. (Dana- 

re^ponaible,  as  it  kn1itS4\?'rS:^   ""'^ï  ^^-« 
oaae^^in  the  course  it  had  toSn  L  a  ï^*«<*«»««  «dopted  m  thia 

iiPbationof  the  law^e™  nî  a     *  V^*^  <I»wupoi»it  tiie 
f<*nce^  of  thia  caae  WtoTh«  «.  '^^^^  ^«  tiecimmf- 

He  believed  it^ulTnevtt  £?/•  ^;L?^ 

the  refugeea  fror»  Fita^  J^^}  ^  '^®*^*  a»*  protocted 
Revolution^^hich  b^Ztt^aTZ  ^  *^°'"  *^  ^  «"i^ 

oûly  o«ence  waa  theirTw  ÏÏfl^  ÎS"^^  "P  °»»  ''hoae 
Cwwn  hei'e  had  for»rtL ÏL  Z^  ^^  7'^  ^  ^'  ^^"    The 


l't: 


Sf' 


I 


>  ■ 


•I 


*^4iuarjr  casea  the  oourae  was  that,  after  Ae- 


^■^ 


.a 


^'i^i- 


>\ 


^;t» 


4'^ 


■f  ;■.; 


i  I 


.'/>■■ 


w 


110 

corne  mth  8ome  grâce  from  the  couMel  for  the  United  âtete^^^ 

?Ae  cl  et  Lj^tî^lPT'  ^^d««i«^W«  to  hâve  aU  the  SS 
niine  caae  elicited— thus  endeavonng  to  auppress  the  real  facta 

tw^^'T**"'"'  e*  iMue-was  BomelûngTdyltonisWnL  îld 
En^hman,Inshman,orScotbhmanatit8head     Sr^rK^l 

^'^<'*»«o«  was  understood  to  contend  that  thev  were  entitl«H 

l'^^t^obliZl^*"^  '^'r\^^  **  '^'ï  '  but  Thaï  WsW 
tZd^nSf^  ^  ''''*  ""^  ^'°^  "^  ^^'-^  "•^«'^  V  the  counseî  for 

T  '^'**  '^f^  maJntained  it  waa  not  a  matter  for  the  discrétion  of  th^ 

ft^d'ln^r-tr '*  5  *«.  P'^'^«««^  of  evidenceTiie  p^'^of 
ttie  defence  ;  but  a  matter  of  strict  right.    It  was  clearlv  ki  JTwn 

Jtl^'^^^t  «^«^'"««e  of  «.e  Coit  of  Sn^^S  P&i  ;:g 
as  by  one  of  the  justices  of  Her  Majesty's  Courtof  OuS  Ba^Ï 
m  Londo«  a«t  a  prisoner  has  a  ngÉt^biW  fo3^Sdenc?iï 

received  opinion  at  the  présent  day  is    thai  it  .î  S,  ^  *    .^ 

Firet^Is  it  • ^' 


^  Jirst — la  itjnoninhent  onm^  tim  niiim«fa«it^  i._g », 

ipdictable  offence  is  m  course  of  pMminaiy  investigation,  te 


'iM^MLf:^k^k'- 


111 

dwcreùon,  of  what  kind  or  nS  f«ï  ^""'^T^^  and  if  any 
be  exercised  by  him?»     <kf.  1  '*'  ^^  ^^^  ought  itT 

question  firsUyUStted^TJÎf-r^^^-     "^^l^ 

was  to  examine  a  priLer*«  tl  P"^*'"®  ""^«^  *he  old  stat^ 

A^  llth  and  12th  ^S?cap  4Tj'1?'  ?^-  *^**  <*^  langt^ge  of 

bon,  Mid  that  the  interiS^^f  tl'ti'J'  '^"ï^  °^  «"«^  *  Sic 

mcumbenton  mafflatmtM  te  hi      ^  **®'°*°<^  '*»  ^e  think  that  it  L 

it  would  be  seen  that  in  thiT^'^  n/  fu  *'*®  *''"«•  A*  page  167 
^k  exactly  ooinoidedr  m^Zsto^l^^r  Chief  bL^h  Pol!- 
t»to  to  a  certain  extent,  acSi  «ÏÏ^l  T¥.*^^  *^«  ««agis- 
by  the  leamed  gentlemai  on^J^ii"'^?!'  ""^^^  ^a<^  ^en  Sed 
refer  *«  another%M«^^^*r*«MI4e,  he  (Mr.  Kerr)  woJd 
observed  that  Co3  Wi  the  ^T.^a    v^"*  fi"*  '*  wonld  be 

dij««ngof  apKTufX^^  beén  commit^df^^ 

not  been  commîtted.  It  wL  l^/ffi^'Tlf  .t^at  a  crime  had 
mentioned  :  «  If,  howeyer^«r*K  T*  i"""^  "»  *he  authority  i,^ 
the  -"iworthiness^fTrî^^Setlt"^^^^  '^^^^X 

cence  p«Kiuced  on  the  part  Tth«  «ï?-»  °*'H'^^^  P^^»^  <>f  «no- 
feel  that  the  case  Ib  not  Sined  anTS^V?."^  («agistn^tes) 
tml,  avetdiot  of  acquittai  m^fS  Vu  «  **  "^  ^^^  committed  for 
will  at  once  dischargï  thTaJSî-lS  .*5S  """^'T^  conséquence,  they 

to  be  depnved  in  this  oase-^ETt  L  ^?\'^«'^  the  defenci 
tain  portions  of  intemati^  law^.lr  g^**î  *«^  ^ro  cer- 
bnngngforwardthewitoeLescon^^^^^  **»«  P"^îoge  of 

Jnng  up  the  testi^n;  necell  1?  ^  ^f'^^ity,  the  C^ 
deman/of  a  foreiim  pLer  !S?îî^  1^.'  '**^«°<'«»  ''>"t  «lat  at  the 
fearful  of  the  in4Si^7£;;;t??ï  ^  T '^«^  '^  ^"'  -'«on! 
Pnsoners  before  us  xtlr^^  u     J^^  *®  ^o^  York  panera  th« 

^^wland  was  extended  to  thA^7  ?^  '»  GreafBritain 


lu 


-fil 


mt 


\'' 


m     !i 


112 


m 


i-sS) 


«counsel  for  the  Crown  showed  that  they  were  afraid  to  encoonter 
the  évidence  the  defence  woul4  bring  forward  of  the  oharacter  in 
which  the  pmonera  figured  in  their  raid  on  St.  Albans.  Aa  Mr. 
Laflamme  had  something  to  remark  on  thia  point,  he  would  say  no 
more  at  présent. 

Mr.  Laflamme  said  that  the  proposition  <m  the  part  of  the  Crown 
officera  was  that  the  granting  of  the  delay  asked  for  would  de- 
prive  the  tribonals  of  the  United  States  of  the  exercise  of  their 
jïu:i8diction  apon  the  offence  aUeged  againat  the  priaonera.    Asaur- 
edly  a  proposition  of  this  description  was  rather  a  atrange  one 
to  corne  frop  the  Crown  officera^  as  it  would  amount  to  an  indiear 
tion  of  a  sort  of  conapiraoy  entered  inta  between  them  and  the 
Fedei^  authorities,  for  the  purpose  of  kidna|^g  the  priaonera 
from  BntiBh  temtoiy,  wherç  they  were  euiàUeé  to  thôr  fi^wLom, 
and^  to  aorrender  them  to  their  enemiea  who  irare  awaiting  lieir 
rendition,  not  to  do  joatice  to,  bat  to  wreak  ▼eagetoco  upon  them.  * 
This  would  be  the  resolt  of  the  proeeedingi»  if  tiie  priaonera  w'ere 
demed  the  nght  of  exculpating  themaelve».    It  had  bçen  aaid  alao 
tiiat  when  prisopei»  bad  exculpatory  évidence  at  hand,  théy  might 
be  allowed  the  privUege  of  bringing  it  up  ;  but  when  they  W  aot 
auch  ready,  tbey  shoold  not  be  allowed  the  privilège  of  addudng  it. 
Upon  what  authoritjy  oould  suoh  a  principle  rest  ?    He  had  several 
tunes  heard  very  strange  law,  but  thia  was  the  stinngest  he  ever 
listened  to.    The  excOptional  oharacter  of  the  priaonera,  and  the 
exceptional  position  iq  whioh  they  atood,  far  from  limiting  the  pri- 
vilèges ordinarily  aUowed  the  aconaed,  should  rather  operate  to 
thenf  greater  libêrty  and  advantage  ;  becanae  were  it  not  for  liho 
treaty  whwh  gave  Hia  Honor  joidadiotion  in  aueb  matten,  eten 
suppose  the  priaonera  had  oommitted  crimes  in  tbe  States,  tiiey 
could  not  bave  been  made  amenable  in  Canada.    The  acts  whioh 
they  committed  ont  of  the  limita  of  this  juriadiotion  were  no  crimes 
oogniaable  by  Hia  Honor  or  any  Courts  of  this  Province,  and  oon- 
aequently  every  benefit  of  bw  extended  to  the  aocuaed  must  be 
accorded  the  présent  prisonera,  wbo  could  not  be  conaidei«d  as  ori- 
mmals  m  the  eves  of  the  committing  magistrate.    They  were  only 
dQtWBaiJ[  forJk  g^ftfilitinn  ^tbe  international  (mirbêTwèen 
Canada  and  the  Unîtad  Stato^AMmd  not  h*»  dftGîîan&.-ssp.wT^^ 

%^m^^"-—   _..        .  , -«^ 

justigJS, 


snch  evidflncft  nf  ^fl! 


Id^d  as  wôuid 
TB8~|mRaiiera 


•—  onc^r  m  committing  for  e^..,^.,^.„     ^„^  jt,»«,v«iv»o 

had  commitfaEKl  no  onenoe  aooording  to  oûriiâw,  and  more  tban  the 
ordinaiy  benefita  of  that  law  should  be  aocorded  them.  Aasuredlj, 
in  a  oaae  of  thia  description,  it  would  be  auffioient  to  refer  to  the 
Sy"^j!^!Pf°^'°°*  ^^  the  gênerai  lainciplç  of  law,  to  eataUoh 
that  ond^ioe  ac««^ag-to1^RÔes  woïBf  own  law  was  i«qTiired't(r 
show  that  an  offence  had  been  committed.    There  might  be  orimin- 


¥m^.. 


r.Mj 


i''--*ri 


lIMJlafAi 


113 

cou  d  be  no  /critninality  charLaht  »i  •/    ^^°*'  ^«"'•edly  there 

if  a  magistilt;  were  bound  to  commft  a  rn«      f  •  '^'-    '^'^«'•«^re 
«ence  of/the  offence  bein.  adSd  tl    °°^^  '"  '^'  «f  sufficient 
»  pnvUeïe  of  proving  thaï  nfoSe  hir°''"'^°'*.''«  ^"^^««^ 
^tute  aplcable  in  thfs  case  boun^Hî^  W.n    î  committed.     The 
^^y  persol  touching  the  truth  o Ah«  .ff       '  ?  '^^°^'"^  «"  «^th 
par^  whole  extradition  waT  deVanded  a^d  7  '^^^'-gfd  against  the 
mittal  8uc^  évidence  of  guilt  as  wmiM  '    -1      '^*'*  ^^^'""'^  com- 
^    crime  wefe  committed  in^hil  nroTh?<^«  •'•"'*'^.-  "^^S^strate,  if  the 
for  trial. /Therefore  if  e^dïniT  T^  V" '^''^'"S  the  party  ^ 

of  the  ci/arge,  tho\foZf''Z^Zlt"t^  ^^'^^'^^'^  *^«  *-'h 
proFe  it^oundless,  and  theV  conKl  *^«*^?^o°7  "^  answer  to 
,  In  addi«on  to  thèse  rea^onab  favl  .T.k'  ^'?'?^"^  «^  *Jii«  ^ght. 
invariabie  practice  of  S  Sonorto  J^  ^^^^'^^^ 
up  exciilpatonr  évidence  andTwî^ut"^.*^' ^«''"««^  to  bring 
mthis|£ef^,thatSse     Î^J^"^^^  ^  deviatf 

the  évidence  which  couîd  be  alW.f    ''''  T  ^««  "^'^'^^^  that 
to  a  dfnegatipn  of  thract  itself  Tt  w^-  ""'^  -u'f  ^'^"^^  ^«'««"t 
cation  îo  show  that  a  denidofïï'Ji        »,«»P0S3ible  for  the  prose- 
adduciC  évidence  that  IstrÏ^^^^^^       ''"^^  ""*  ^  °^*^«  ««  ^e"  bj 
Je  deTence  denied  the  Ltts  J    tLT""  '^Î'"'^'"*"*/  ^  if 
difaon  k  the  exercise  ofX  maLtrate'«  •  °  ?!-*^^^  ^^  *^«  «on- 
waathLxistence  of  a  crime  aSst  th«  -  •'""?^'?ï'"  '"^  *W«  «natter 
StatesTsuch  a^  defined  bTtheSv     tT^^'P'''  '*^«  «^^^^^  United 
was  4  act  committed  b7theor&  a  L*'''^  '''"^".^^^^  ^ï»**  ^his 
belliints,  recogniz^d^as  surh  bv  iuf  • 'T"?r*'  ^^  '^"^  «^  *^o 
or  a  liere  case  of  devasta^nn  ;?  Y  .^"*?'°»  ^e  it  axîase  of  plunder 

caself  murder  or  rXr^Cbt^^^^  ^'^^'  there  w^no 

fromfaie  ordinaryXs^of.L  °°?®^*''*«''<^^ary  déviation 

a^ttheprin^eTlr^^^^^  i^^^an,  anS 

othei^  question  thah  its  being  an  S  Z^-f/ ?1*P^°^^°*  ^^  «"7 
nussipned  tropps,  undera  s2aîord«r  J^'^^^^t-by  regular,  com- 
auchla  case  Seré  wa/nn  T^l  /  ^'^"'°  *  belligerent  Power  in 
a^anlin  the  cX  an  app^X^î^e  i^.'^.^^^^^^^ 
emi^ntlemen  in  this  cXy  on  a  «1^1^.^"  '^"-"^  'V^'  ^oul' 
menfof  the  United  States  If  a  mrff  f  i/  u°"°^°«  **>«  <^«^em- 
waaxçommitted  aceerding  to  ti#  Lî^''"^ '^^^  *''**  ^  hQaiJle^«r.f 
"-'-'-''•      -'•*^*"*"«  *o   lustnictions  by  a  regularly  commis- 


J 


•'.'^^ 


iJu^^^ltu 


/  ^: 


114 


be  a  remedy,  but  not  under  the  présent  treaty  law.  Evidence  might 

be  produced  in  behalf  of  the  prisoners  every  whit  as  bénéficiai  as 

proof  in  a  case  of  murder  that  the  supposed  murdered  lïian  was 

alive.     He  could  see  no  différence  between  exculpatory  testimony 

of  one  kind  or  other.     If  the  prisoners  were  entitled  to  Show  any 

évidence  -whatever  in  exculpation,  time  must  be  allowed  them  ; 

because  if  time  were  not  allowed,  it  would  be  as  well  to  deny  them 

justice  absolutely,  and  dèliver  them  up  to  the  American  authorities 

who  were  hère,  assisted  by  ail  the  >  powers  in  this  country,  exer- 

cising  a  most  unjust  and  unlawful  influence  not  oiltly  upon  public 

opinion,  but  upon  every  officer  in  the  public  servici^,  to  make  them 

act  not  as  judges,  but  tB  police  officers,  in  order  to  obtaîn  by  every 

possible  means  iSie  sviîrender  of  the  accused  to  the  United  States 

authorities.  If  the  Crown  wish4d  to  disclaim  any  unjjust  action  onits 

part  in  this  prosecution,  and  show  it  was  actuatediby  fair  motive» 

and  wished  to  see  the  treaty  well  carried  out,  they  ought  to  give 

full  scope  to  the  dôfence,  and  not  begrudge  a  delay  of  thirty  days 

for  the  procuring  of  exculpatofy  testimony.  The  Croira  had  resorted 

to  ygrious  methods  in  the  conducting  of  the  case^  sikch  as  bringing 

forward  only  one  charge  at  a  time,  in  order  to  experiment,  to  feel 

their  way,  to  increase  the  chances  of  rendition  on  |  some  of  them, 

with  the  object  of  securing  that  resuit.    But  theiûjy|eretwo_partie8 

equally  entitled  to  justice,  in  this  case — one  ^heCbnfederate"and 

thfi.'ôtner  fïïe  Fédéral  tjtates.    ^l'he  lôrmerhad  coîBt^  fijf  wgt'd  claim- 

ing  the  exercise  of  that  "R"^"^  iippartialitv  and'  tlfenBenefirorthat 

BrîfiBïnibërtY  whicli  Jjritain  never  denied  the  reiugee  once  Hfe 

enferedUirilâh  terntoryl    And  when  thèse  pn3?ïneïrtïid  reached 


the^sEéltër  oTîE5~Briti8h  flag,  and  were  prepared  to  show,  that  they 
had  committed  nought  but  an  act  of  justifiable  warfare,  it  was 
strange  to  see  the  Government  act  as  it  had  donc,  trying  ail  in  its 
power  to  curtail  the  efforts  of  the  defence  t#  establish  the  innocence 
of  the  accused.  He  (Mr.  L.)  was'  sure  His  Honor,  considering 
the  risk  and  diflSculty  experienced  in  reaching  the  Confederate 
.capital,  would  not  refuse  such  a  reasonable  demand  as  thirty  days' 
delay,  which  would  enable  the  defence  to  show  beyond  a  doubt  that 
the  acts  charged  against  the  prisoners  in  reality  were  neither  robbery 
nor  murder,  but  acts  of  common  and  justifiable  warfare. 

Mr.  Devlin  desired  to  say  that  the  gentlemen  employed  as 
'counsel  for  the  United  States  eoncurred  in  the  opposition  made  by 
Mr.  Johnson  to  the  application  for  delay.  The  prisoners  were 
arrested  on  the  19th  of  October  ;  but  had  they  shown  that  from 
that  time  up  tiU  now  they  had  adopted  any  means  to  secure 
attesdiotoe^  of  witnesses  ?  HonrOTr;  Edmonds,  wlio  speoiaUy 
represented  the  U.  S.  govemment,  had  declared  that  his  goveni- 
ment  had  desired  every  reasonable  means  of  defence  should  l)e 


.f\: 


115 

ajlowed  the  prisoners  before  final  judgment  was  rendered      B,.f  T 
th.rty  days  .ore  were  allowed,  iiwould  be  si^^^a  de-J  ,V' 

évidence.     We  are  notcalled Tpon  to  «t^^^^^^^  ^ J^"''  ' 

domg  put  the  gentlemen  on  the  other  sidrid  S^a  S'    ?    ^  "^ 
ment  on  our  track.     Mv  learn3  fS  lï?    t^    v^®""^^  S*'^®^"" 

matter  of  unusual  importrce  ZoûJ^rk.y^"  ^■'"'^'V.^  ''  ^ 
national  law,  of  national  honor  and  dul^"!!^  V^P""'  1  ^"*«^- 
livesoffourt^enmen.  If  thèse  QueS\  .^^''*^^^  ^"^  *^« 
'  sideration  they  deserve,  the  factsTJLt  b.Tli  ""'T-  ^^  '^'^■ 
the  nature  of  the  caae  r^ndersTt  evEt  tb«ff  JI  .««««^tained,  and 
them  can  only  be  obtai^ed  S  rL^V  A^^^ 
which  must  bc  followed  we  ar«  „To  î\  "^  .^  t^  *^«  ^«"te 
mUes  from  RicLondrand  to  rSh  t \a^^^^^^  '^]l^^^  f  l'600 
territory,  guarded  at  evervlTnf  bl  îf  ?^'  ^^''^^^^  ^««*i^e 
denceiJ'lfs8thanthirtrSyr*'Wec^^^^^  î^  ^^^  .«^■ 

safe  conduct  had  been  ^ran^d  to  "LsalgS'  ''  "  ^"  '''^^'  ^^  ^ 

«/wrfjre  Coursol.—This  ia  a  verv  imDort»nf  moff^.  »  j 
some  considération      I  shall  ^y7:Z^:\X::^^i'''''''''' 

After  recess,  Ji^rf^e  Coursol  gave  iudgment  as  fnllnt»  .     a 
application  on  the  part  of  the  prisonera  tTohl-n  »^  ?^' 'r'^'' 
month  for  the  production  of  evidCce  fo^  tt  Zft  "  \     î^  "'^  *^"« 
urgentlyand  a'bly  argued  befl Te  thif  day     This^lnT^^^^^^ 
h^  been  opposed  by  Mr.  Johnson,  répresenting^ihe  0:^^^^? 
Devlm,  iiî  the  name  of  the  American  flnfhnrUiJl    ^"'^°'  '^^^  ^- 
that  although  in  ca.es  of  C  oSerf  CelT?^^^^^ 
granting  such  an  application,  under  the  tî^«^wJi     .P*''^^'' ""^ 
that  power,  aa  I  wo^u^ld  be  theTeby  v^rîuX  L„^t°^^^^ 
diction  of  the  American  Courts  to  tJy  the  SS      T?-  *^®  J"P^ 

prosecubon,  the  exercise  of  everv  riirht  to  wt;«î^K    i       .J^  ^^ 


# 


U<vV»'*l.^<,f^) 


*>Én*  ,*"*  vA..a,kjtt 


,     tii'   ■.(«.'jtX.s.    J         J*ib^ 


!■'• 


f^! 


-«;. 


116 

fectly  satisfiedof  the  criminalitj  of  the  actof  theaccusedàccordingto 
our  own  law.  Thé  affidavit  shows  that  the  accused  propose  to  prove 
that  anythîhg  thef  may  hare  done  wari  an  actof  legitimate  yrarfare, 
and  as  international  law  is  a^part  of  the  common  law  of  tbis  country, 
affecting  the  character  of  homicide  and  other  félonies  when  com- 
mitted  under  spécial  cfccamstances,  I  cannot  be  prepared  to  give  ' 
any  opinion  upon  the  évidence  of  criminality  until  I  hâve  the  wnôle 
case  before  me.  The  évidence  proposed  to  be  adduced  may  not  affeôt 
the  case  laid  before  me  by  the  prosecution,  but  I  feel  that  I  should 
be  guilty  of  an,  act  of  injustice  if  I  deprived  the  accused  of  the 
oppoftunity  of  placing  thèir  évidence  before  me,  reserving  to  myself 
finally  to  détermine  the  objection  now  made  to  the  hearing  of  évi- 
dence, when  the  case  is  finally  closed  and  left  to  my  décision.  Having 
thus  disposed  of  thia  point,  the  next  considération  is  what  delay 
shall  be  granted.  The  application  is  for  one  mon,th,  and  the  ques- 
tion in  my  mind  is  whether  ^uch  a  delay  be  a  reasonable  one  or  not. 
I  hâve  arrived  at  the  conclusion  that,  under  the  spécial  circum- 
stances  disclosed  in  the  aflSdant,  to  grant  merdy  a  week  or  a  fort- 
night  would  be  tantamount  to  refasing  the  aj^ication,  and  I  will 
therefore  grant  until  the  13th  of  December  next,  upon  the  express 
condition  that,  if  the  prosecution  so  désire  it,  thé  further  proceed- 
ings  upon  the  other  charges  shall  be  suspended  until  the  évidence 
for  the  defence  and  the  argument  in  this  case  shall  be  fully  con- 
cluded,  and  also,  in  that  event,  the  prisoners  must  place  before  me 
a  written  application  that  they  be  remânded  upon"  ail  thè  charges 
until  the  said  13th  day  of  December  next. 

Mr.  Devlin  then  said  he  would  state  without  hésitation  that  the 
prosecution  would  not  proceed  with  any  of  the  other  charges  until 
this  case  was  finally  decided,  the  arguments  concluded,  and  Hls 
Honor's  décision  ^ven  on  its  mérita. 

Judge  Couraol. — The  prosecution  may  do  as  it  thijûks  proper 
until  the  arguments  and  the  witnesses  shïJl  be  heard. 

Mr.  Devlin.— Yon  grant  tkis  delay,  making  it,a  condition  that 
this  case  is  to  be  finally  concluded,  and  the  opHRon  of  the  Court 
expressed  before  we  are  called  upon  to  proceed  on  any  further 
charge.    I  state  that  we  will  not  do  so. 

Judge  Coursol. — The  évidence  in  the  other  cases  will  not  be  gone 
into,  until  the  defence  and  arguments  in  this  are  fully  concluded. 

Mr.  DevUn. — We  will  avail  ourselves  of  that  part  of  your 
Honor's  judgment,  and  will  not  proceed  till  the  case  is  fuUy 
determined. 

Mr.  Kerr.—Is  the  décision  of  the  Court  to  be  pronounced  in 
this  case  iprevious  to  going  on  with  any  othem  ? 

JuSglCour8ot.--l%m  not  prepared  tb  sayso.  HyjûagmënTis 
^t  the  évidence  in  other  cases  shall  not  be  gone  into,  till  the 
defence  and  arguiûents  in  this  case  shall  be  fully  closed. 


*^4.i^ 


«ï:».*i»ii     i.é\âM.' 


fi 


117       . 

^r.  Jïm-.-Very  weU,  jour  Honor. 

iaterfere  mth  j»8tice  since  I  ha™  h  Ja^atTthK,  »"»«'''? 
f!'^„¥'^^~^'  «re  perfecUy  convinced  of  ttaJyour  Hoior      ' 


ta^s  to'f  V  S:i  ^^  ^«qj^««*«d  V  my  friends'from  tire  United 


mu  •      .  n    y'-"  Tuesday,  Dec.  13. 

Messra.  Abbott  and  Laflamme    O  D    an^  m,  ir 
Ihe  accused  occupied  the  petit  jury  box. 

tendthatthewhôleoftheproceedingsarewrong.  ^ 

^;  ilT.ÇT't  ^°'  '^  ^'^'^^  "P°^  ^i«  P^poaition. 

TA.  >ra<^^.  of  ihe  Senum.-Tï.,  objectionls  to^y  jurisdïction 


t^  h««.  ^r  i®  objection  cannot  be  disregarded. 

to  hear  the  exceptions  U,  my  jurisdiction. 


I  am  bound 


.*  -m 


•I 


<^È^l#%W«r  .A,  .    ^v 


-r^T 


•  î- 


'¥' 


V   i 


118 

Mr.  Johnaton. — I  hâve  no  objection  to  hoar  them. 
Mr.  Kerr  then  eaid,— Bv  the  Union  Act  it  is  provided  that  the 
Canadian  Parliament  shall  hâve  power  to  mak^  law8  not  répugnant 
to  that  Act,  or  to  such  parts,  &c.,  or  to  any  Act  of  Parliament 
made  or  to  be  made,  and  nOt  thereby  repealed,  which  does  or  shall, 
by  express  enactment  or  by  necessary  intendment,  extend  to  the 
Provinces  of  Fjpper  and  Lower  Canada,  or  to  either  of  them,  or  to 
the  Province  of  Canada  ;  and  ail  such  laws  passed  ând  assented  to 
by  Her  Majesty,  or  in  Her  Majesty's  name  by  the  Govêmor,  &c., 
shall  be  valid  and  binding,  &c..^within  the  Province  of  Cana4a.  ' 
The  condition  précèdent,  then,  to  the  fact  of  statutes  being  valid 
and  biudmg,  is  that  they  are  not  répugnant  to  any  Impérial  Act 
which  either  expressly  or.impliedly  extends  to  the  Province  of 
Canada.  Acts  to  which  Her  Majçsty  bas  given  her  as^ent  after  réser- 
vation, are  subject  to  the  opération  of  the  condition  précèdent.     By 
the  Treaty  of  1842,  oMoat?  extradition, it  was  provided  that  upon  mu- 
tuJÎTrèquisition  b^  the  two  States  contracting,  their  Ministers,  offi- 
cers,  &c.,  made,  it  was  agreed  the  United  States  and  Great  Britain 
should  deliver  up  to  justice  ail  persons  charged  with  the  crimes 
specified  in  the  said  Treaty,  committed  within  the  jurisdiction  of 
either  of  the  high  contracting  parties,  who  should  seek  an  asylum 
or  be  found  within  the  territories  of  the  other.    This  should  only 
bedone  upon  certain  évidence,  and  it  proceeded  tosay  fliat  the 
respective  judges  and  other  magistrales  of  the  two  govemments 
should  hâve  power  and  authority  to  issue  a  warrant,  &c.     By  this 
Treaty  the  contracting  parties  pledged  themselves  to  vest  in  aJl 
their  judges  and  other  magistrates  power  and  authority  to  take 
cognizance  of  and  exercise  jurisdiction  over  such  crimes,  neither 
judges  nor  magistrates  having  at  the  time  any  Common  Law  or 
statutory  power  to  take  cognizance  of  such  ofiences.    The  Impérial 
Act  6  and  7  Vie,  cap.  77,  waa  then  paased  by  the  Parliament  of 
Great  Britain,  for  the  purpose  of  giving  effect  to  the  said  Treaty, 
and  it  was  therein  provided,  that  previom  to  the  arrest  of  any 
offender,  a  warrant  should  issue  under  the  hand  of  the  Secretary 
in  Great  Britain,  or  of  the  person  administering  the  govômment  of 
the  Provmce,  signif^ng  that  a  réquisition  hal  been  made  by  the 
authority  of  the  United  States  for  the  delivery  of  the  offender,  and 
requiring  ail  Justices  of  the  Peace,  &c.,  to  govem  thernselves  ac- 
cordingly,  and  to  aid  in  apprehending  the  persons  accused.    It  ia 
perfectly  clear  from-  the  principles  of  the  Common  Law,  and  also 
from  the  wording  of  the  Act  in  question,  that  none  of  the  magis- 
trates or  other  officers  were  vested,  previous  to  the  passing  of  that 
Act,  with,  power  to  arrest  or  iake  ognizance  of  offences  committed 
=«n  foreigff  sofl,  for  *he  Act  iff  question  Tras^pawed  to  give  thèm 
thoae  powers,  and  it  is  to  be  remarked  that  the  words  of  the  Statute 


'Carry 

its  op 

as  pas 

sectioi 

"  thei 

or  p 

com 

the 

«  ther 

*'  Coû 

"  othe 

"  oper 

"  such 

"  long( 

of  Can 

Her  M 

March, 

ImperÎ! 

and  no 

The 

Mr. 

proclain 

.,v  8295,  » 

Canada 

"^•By  «tl 

(22nd  -^ 

it  13  pn 

providec 

parts  of 

shall  sta 

if  the  p 

thoôe  of 

■came  int 

,prevail. 

12  Vie, 

General, 

of  the  2 

Miyesty 

ana  surr 

the  first, 

above  re 

sections  1 

âabstitutc 

vas  givei 


*.i. 


119 

'çarr^  into  cffect  tho  Treaty.  This  Statute,  of  course  extended 
ite  opération  over  ail  the  dominions  of  Gréa  Britab  andïstn 
a^  passed  and  aaaented  to,  became  law  in  Canada.  'Cth^  fifth 
section  it  was,  however,  provided  that,  -  if  by  any  law  oVordinance 

"    «sioTib'^*'^  '"'-'^  Legislatur/of  Lj  bScoW 
or  possession  abroad,  provision  shall  be  made  for  can-vin?  infen 

«  tW^f .  1  '  ^Z*Ht"^'*'*"*'^"  °^«<^'»«  otfaer  enactment  in  lieu 

-  fefl'  rp'î    u  ^^t^rmght,  with  the  advice  of  her  Pr^y 

Council,  (,f  to  Her  Majesty  in  Council  it  seqms  meét,  but  S 

otherwise,)  suspend  within  any  such  colonv  or  tZ^fisinnSl 

"  lontr  "     The  12?H  V*°^'"*  iT*^"*^"^  '"^  ^''''  *^«^«'  ^^  ^^ 
longer.       Ihe  12th  Vie,  c.  19,  tws  passed  by  the  pLrliament 

of  Canada  as  such  substituted  enactment,  and  was  reserved  for 
Marcb,  1850,  Her  Majesty  m  Council,  by  ordeh  çuspended  the 

Me  aurt.-Waa  the  12th  Victoria  sanctioncd  ? 

T:  -"fC-— I'  ''M  »  resorred  Act.     The  Order  in  Council  waa 

t^^iStrr/i  tf  ^»^°«™»'*tpt^cs 

proviaea  lor  by  s.  4,  ail  the  enactments   n  the  several  acts  and 
I«rte  of  acte  in  such  amended  schedule  A,  mentionid  m  SalTd 
shall  stand  and  be  repealed  ;  by  the  9th  section  itTs  eS Itt 
Lt   ?T''°°'  °f  1^^  ^«^9«<lated  Stahites  are  hot  the  slfL 
those  pf  the  repealed- acte  mioad  transactions  after  those  sSut^ 

rv'ai"  WhêdV  r.^S'S  ''  tl^e  Consolidated  Kutefshal 

'12  vt"    IT^'^t  ^f  ^-S-C.»  page  f203),  appears  as  repealed, 

1^  Vie     chap.  19.     Upon  the  proclamation  by  the  Governor 

ofXi2nd  Vie  «f 't'.^^^^^^^^  *^«^  appeLd'L  cS  ;^1 
MaLtv  and  ffl;'TT^^5i'*.''T'>S  the  treaty,  between  Her 
Mwesty  and  the  Umted  States  of  America,  for  the  appréhension 
ajdsun-enderof, certain  offenders.»  .  By  the  24th  W  Se 
the  first,  second,  and  third  sections  of  tL  89A  chapT  cT C  ' 
above  referred  to,  wer^  repealed  absolutely,^d  fof'  the  sa^d' 
sections  were  submitted  ihree  other  sections     P^tT,»  «  J+      !? 

peaoe  throughout  the  Province,  ànd  fc^,4o;„  ft,«A:.aT-- %^®  — 


^a«  given  the  power  to  take  a  complaint  and  issue  à  warr^t 


'J^'^ 


r 


■r~^>- 


^  '■il 


120 

ïïff  tte  12th  Vie  chap  19,  and  c.  89  of  the  ConsolidateJ 
Statutes^of  Canada,  the  évidence  in  the  ôpinio^of  the  judce  or 
justice  of  the  peace  should  be  sufficient  to  suetain  the  chig«  ; 
under  the  24th  Vie,  chap.  6,  it  is  onlj  necessaiy  to  be  such^a^ 
would  justifv  hi8  appréhension  and'committal  for  trial.  Hère  then 
are  «rave  changes  from  the  provisions  of  the  12th  Vie,  chao.  19 
We  hâve,  morejyer,  the  absolute  repeal  of  that  statute  by  the  Act 

K  r^e'c^t^P:  ^  '  .'*  /'  S:"®  ^^^^  *'  ^««  substautially  re-enacted 
by  the  89th  chap.  of  the^Con.  Stat.  of  Canada,  but  fiJm  the  very 
moment  ofits  repeal  the  Impérial  Slatute  revived  and  remained  i 
force  m  <hÎ8  country  until  a  new  order  of  the  Queen  in  Council  had 
W.1  Py^i,«^«JÏ' f  Tpdmg  its  opérations  during  the  continuance  m 
force  of  the  89th  cWp.  of  the  (5on.  Stat.  of  Canada.  But  to  make 

aU  tiie  three  first  clauses  of  the  89th  chap.  C.  S.  C,  and  subsLted 
ln.Z  ^i^^"  V  r  'ir^'  whi<ih  had  never  been  submitted  to  the 
Zn^fK  ^1.'^."''  Majest;,^  m  Council,  clauses;  moreovér-,  which 
cannot  be  looked  upon  as  givmg  complète  effect  to  the  tÂà,  as 
thereby  some  of  the  officers  expressly  named  m  the  treaty  Wôse 
to  whom  power  to  act  thereunder  should  be  given,  bave  been  ousted 
pf  their  juriadiction  It  must  be  taken  for  granted  thàt  the  Order 
m  Council  havmg  the  effect  of  putting  life  into  any  Act  of  Parliar 
ment  passed  by  our  législature  must  be  posterior  in  date  thereto  ; 
m  tact,  it  18  nothing  more  than  requiring  that  previous  to  the 
?hZ^  -to  force  of  the  substituteâ  Act!  Uer^Z^fs  1  nt 
thereto  should  only  be  given  by  suçh  Order  in  Ôouncil.  ^^e 
power  to  repeal  any  act  of  our  Législature  belongs  to  our  Legis- 

If  Z'«°K  ;f  "'*'"''  ''  ^y  ^"P""^^  ^«'  imposed  on  the  reS 
of  the  substituted  enactment,  and  no  other  body,  save  our  L^ 
lature,  in  the  natural  course  of  things,  could  repeal  ite  Acte 
consequently  the  repeal  of  the  three  dauses  of  chap.  89,  of  thé 
toTe  «Itr.^^i^r  of  Canada  isvaUd;  but  the  cCes  sought 
to  be  substituted  hâve,  as  yet,  no  Hfe  in  them,--they  are  but 
mammate  bodies  awaifang  the  ^eath  of  life  from  the  orSer  of  Her 

m  heu  of  our  Provincial  Statutes,  or  any  of  them,  being  in  force, 
It  oT"^n '*'  temporarily  suspended  quoad  4is  Province  by 

bv  the  24trvi.  î-  1^  (Th?*^?L  V  the  Consolidated  Statutes.or 
Z.  f^  iï-^  '  ^i'^P-  ^.'  "  -«itèrent),  régulâtes  ail  proceediigs 
for  extradition,  and  previous  to  any  of  the  officers  therein  namfd 

Sîr/ ^^^'^'/fu  *"''*^°«  a  pei^op  charged'with  the  com- 

m^on  of  one  of  the  cnmes  (mentioned  m  the  treaty),  in  the 

Umted^Stetes^ivM^bso^^^^^^^^ 

Honor  jurisdiction  m  the  matter,  that  a  warrant  should  be  issued 


■^^.l 


'■J^-itV»**i*«/V,^rt^M    K^i^'iMlitJ.. 


Il 


'121  '   [ 

lZ^'A<^^'7:snr:^^^^^^^^  to  «.«  provisions  of  the 

you  bave  not,  nor  Ld  you  at^^^  i««"ed  ;  and 

r  to  arrest  the  prisone„  ^  t™e,  junsdiction  m  thèse  cases 

•  st^rbe^t;^^^oSt  tf  ^  b^îxt^s:  s;i 

ImperirAThas'revi^edTn^/     '  circumstances  mentioned,  tho 

^r*  ^^T.'-Nojjrifldîction,  no  warrant  having  issued 

merely  reZd  ffis  Honor  tha*  J^  «  T"S  ""««««««^'-y-  He  would 
of  the  ïanCcted  mZr  fh«  L  ^^  ^*  P""^^"*  "^^^"^  t^e  la,w 
6  24th  V^^  W    "°'*«'^,*f  Powers  conferred  upôn  him  by  chan' 

aside  a  solemn  act  ff  Parlkment  1m  ^Z''  '•'  ^"««^•■^««n  to  set 

oa^e^and  thi,  Acî  ™  •Ltft'Jte'^SeltfchL^I 
since  been  repealod  or  disaUowed    miiZSvi!^      •    ""' 

■   The  Œuri.~.JfmwâAir,. _:ii  «      .        ...  ~ 


4^ 


1  ;  '^' 


:M 


,  Ji^ 


^^^■^l    fl    V 


-•i 


«);«-f»Mp.^»»rt*  «■trew*«»-»»« 


^-yi^ 


' 


;■'■<'* 


''■':^Bi 


122 

M^'  Devlin  did  not  moan  to  saj  that  parties  should  bo  arrosted 
in  this  Province  without  some  autbority  ;  l>ut  he  meant  thatv  it  was 
in  llia  Honof's  power  to  issue  hia  warrant  for'^tho  appréhension  of 
a  fugitive  bofore  waiting  for  othor  authoritv,  or  a  warrant  from/the' 
Govemor.  ïho  opposite  protpnaion  would  cause  a  frustration  of 
justice,  and  render  it  impossible  to  carry  out  the  provisions  of  tho 
Treaty.  o-     ; 

Mr.  Johnson  said  Mr.  KeTr  was  in  crror  iû  stating  that  12  Vie. 
chap.  19,  had  been  repealed.  No  such  thing.  Hé  had  cited  from 
tho  schedule  annoxed  to  the  Act  to  show  it  had  been  repealed. 
But  repealed  for  what — for  the  purpose  of  consolidation  with  the 
other  statutes.  It  is  now  rèproduced  in  the  Consolidated  Statutes, 
and  exiflts  with  the  exception  of  three  clauses.  TJhé  6th  and  7th 
Victoria  (Impérial  Statute)  was  suspended  bjt proclamation  of  Her 
Majestjr,  and  the  12th  Vie.  cap- 19  introduced  as  the  law  which' 
ought  to  guidé  the  mode  of  procédure  under  the  Ashburton  Treaty. 
But  this  Act  never  was  repealed,  being  rèproduced  in  the  Consoli- 
dated Statutes.  The  Consolidated  Statutes,  châp.  29,  page  xxxviii 
set  forth  that  it  should  not  be  held  to  operate  as  new  law,  but 
should  hâve  effect  as  Consolidated  and  as  declaratoiy  of  the  law 
contained  in  the  Acts  so  repealed,  and  for  which  ffiey  were  substi- 
tuted.  His  Honor,  theréfore,  had  jurisdiction  "to  proceed  without 
a  warrant  from  any  govemor  oi:  any  executive  authority  under  the 
Consohdated  Statutes  now  existing. 

Mr.  Kerr  said  they  did  not  require  the  judge  to  set  aside  any 
Act.  As  long  aa  the  proclamation  of  Her  Majesty,  ^ving  effect  to 
the  amended  Act,  was  withheld,  it  remained  in  our  statute  book 
inammate.  It  wanted  breath  and  fîfe  to  be  infused  into  it  by  the 
order  in  Couçcil.  He  contended  that  by  thç  24th  Vie,  chap.  6, 
the  12th  Vic^chap.  19,  had  been  absolutely  repealed,  and  it  could' 
not  be  pretended  that  the  substitution  by  our  Législature  of  three 
clauses  other  than  those  assented  to  by  Her  Majesty  did  not  alter 
the  12th  Vie,  chap.^9,  and  destroy  its  force. 

^     The  Court  aaid  it  waa  a  knotty  point,  and  must  be  taken  into 

considération. 
Mr.  Devlin. — You  can  gp  on  with  the  examination  of  the  wit-  > 

uesses  in  the  meantime. 

The  Court. — Not  when  the  question  is  as  to' jurisdiction. 

•     The  Court  now  adjoumed  until  twoo'cfock. 


THE  RAIDERS   DISCÇAROED.  • 

At  three  o'clock  the  Judge  of  the  Sessions  came  into  Court  and 
proceeded  as  foUows  to  give  his  décision  upon  the  objections  to  hia 
Tjœrâdictiôn  rauêd  m  âië  ibrenoon  :—    ^ "^ 


•s;:"Rat:*i'i1Jf.t^T 


123  '  ,        - 

Tho  pobt  I  am  now  called  upon  to  derMn  ;«  «„«    r    x 
importance,  inasmuch  aa  my  iurUicL  «n!?    l     f,  °'^.  '^'^'^  great 
this  case  has  been  put  in  aueTtim    „nH  •     ^  r^^T *^  *«  '^«^  « 
directly  deniod       ^  question,  and  is  now  for  the  firat  time 

Suprême  Law  knd  ÔTcdoniaTir-  T'^  ^°  ^ogarded  as  thf 
And  that  the  eZt  of  lîetÏÏies^'f  t'1  p'  'f''^}^^^  ^  it- 
ding  tlae  impérial  enactmont  to  îv?e&"r'ï^ri?^°  ^T"" 
aa  such  substitututed' provisions  oftWnlf  •    '^}.^'^'  ««'«"g 

no  longer;  necessarily  reTved  th«  nt.  •  ^     TT*^  '"'^•''•««'  "^^ 

apDrovil  was  again  MceLrv  to  X^^^^  """^  *hat  the  samé 

anâ  that  the  arrest  of  th^nS  1  ''*^*^  *^®f  ?  "«'^  provisions, 
madeupon  a  tarifs  ÏL^b^theX'  ''"S  ^'^^3^.  l^^^e  been' 
;^^onn..Hng  the  governS  o^C^^ld^aTZte^^S'  ^he^m^ 

the^24tfvLtlf  bV'st^^^^^  ^^  '«  -^«d  tl^at 

havlng  been  disallowed  briler  41^^^^^^^  ^^°^^^'  *°d 

Friodhad^aaaedlo72bXffL„.*'  XTI'^""  twovears  which 
iûwér  of  iX^aL  Zr  T  if  *"®'*^  '''^  ^^^  accused,  that  it  has 
înconsUtSnaUr  VoW      ^'''  "'  ^^"'^  *^  ^«^^^^«  «^«  24th  vfc^ 

-^  si:;t:S^i::2s:i^n  ^  ^^*r'^^  ^>«^^ 

interpretingtfe&uses  oi^teTn^*^^^^^^^  ''"f  Legislatiïrè,  and 
iold  that  t&s  proSn  a«^t^?  ^  n  ^°'''°  ^*^'  ^  ^  ^^  "ow,  I 
b7-r  Le^aCrcIL^  a^e tetr^cTt:' J^  T""^^  ^^^ 
our^own  législature  ean  origbato    I  ^  «uch  measures  as 

it  iîâ^ï^Jl^^t^fî^t^^  -f^K  »  a  national  one, 
nation,  anf  the  LltiT^ctt^Ilt  ^'^^\^^'^^  and  aforeign 
m^xm  the  case  ISat  ou  Sil-^îl.^  "*«  ^^^  ^^^ 
instance,  and  in  the  absence  ofïS^  ^  *!»" 

given  bv  the  Que  n  to  the  24^  V?l  TthT'  '''  ^T"^  *PP^^^ 
bj  the  fmperial  Act,  such  as  tt  ^vL  to^  ^^^^^î 

upon  to  déclare  the  34*1,  v1«  ?     ™^.^ed.    I  am  not  called  hère 


impérial  authority  in  a  matLrnr  no?    îi      ^  ^  ^'*"'**^  *^  <^bey  the 


:t 


3»  '   i 


-'i^' 

f 

I 

1 

( 

t 

t 

■ 

^ 


124 

Alter  giving  to  thèse  différent  objections  my  most  deUberate 
attention,  1  hâve  corne  to  tho  following  conclusion  :-*- 
^  1.  That  the  Impérial  Act  pasged  to  give  effect  to  the  treaty  ia  to 
be  regarded  as  the  suprême  power  and  authoritv,  and  to  be  taken 
as  mv  sole  guide  m  this  case,  and  that  the  Canadian  enactmmt 
could  take  effect  only,  so  longeas  the  permimve  power  granted  to 
our  local  législature  has  been  strictly  pursued,  followed  by  the 
sanction  of  Her  Majesty's  Privy  Council  mspending  the  impérial 
enactments,  and  giving  force  and  effect  to  our  local  législation.     ^ 

J.  Ihat  the  12th  Vie.  passed  by  our  législature  with  the  view 
to  substitute  provisions  to  those  contained  in  the  Impérial  Act,  did 
not  become  |he  law  of  thia  Province  without  the  Royal  sanction 
hret  being  given  to  it,  in  the  fonn  of  a  spécial  approval  by  Her 
Majesty,  with  the  advice  of  Her  Privy  Council  ;  and  in  the  tenus 
ot  t^e  Impérial  Act,  the  suspen^on  was  not  absolute,  but  limited  to 
such  a  time  as  the  12th  Vie.  shouldremain  in  force,  and  no  longer, 
à.  Ihat  the  substituted  provisions  of  the  12th  Vie.  havin^  been 
repealed  by  the  24th  Vie.  cap.  19,  the  provisions  of  the  Impérial 
Act  arc  remud,  which  provisions  to  cqnfer  jurisdietion  require  the 
issiung  of  a  warrant  in  the  first  place,  by  the  Govemor  General,  or 
^'i®  Pereon  administering  the  govemmcht  of  Canada. 

4.  That  while  admitting,  as  contendêd  by  the  leamed  and  able 
gentlemen  representing  the  prosecution,  that  unless  the  Union 
had  had  m  ail  matters  relating  to  local  govemment,  the  sanction  of 
the  Governor  General  on  behalfof  Her  Majesty  the  Queen.  is  suffi- 
cient  to  make  a  law  operative,  stiU  the  subject  matter  in  this  case 
bemg_a  treaty  between  two  nations  reqniring  impérial  législation  to 
give  it  effect  the  case  is  so  exceptional  in  its  character  that  I  am 
compelled  to  look  to  the  propoged  Act  to  décide  what  is  the  force  of 
our  local  législature  in  that  respect. 

Giving,  therefore,  to  the  ôth  section  of  the  Impérial  Act  a  broad 
and  légal  interprétation,  I  cannot  arrive  at  any  other  conclusion 
than  that  any  substituted  enactraent  to  that  Act  of  our  Législature 
must  not  only  be  approved  by  Her  Majesty  of  Her  Privy  Council, 
but  also  that  an  order  of  suspension  must  expressly  be  made  ti 
give  it  effect.  ^       ^ 

That  the  new  provision  contained  in  the  24th  Vie,  chan^ed 
very  «Jatenany  the  provisions  of  tho  12th  Vie,  approved  by  Her 

Maiesty    bv  Koval  Proelamafinna   i'annA,1    «rî^V,  ♦!»«  „J„:—    -!•  TT-_. 


__,„,.^^.  v^v,  j/vovc  juuDuiuuon  m  mese  matters,  which,  bv  the 
terms  of  the  treatv  ifeelf,  ia  conferred  upon  them,  giving  such 
powera  to  the  Judges  of  our  Superior  Courts  and  to  the  local 
^officera  a«>t  dosignaeed  in  tlte  42th  Vie,  and  -tfana,  i&  wy 
humble  opiMion,   the  new  proviaiona  of  the  24th  Vie.  are  sub- 


125 

«anction  ofHor  MaJestv    wSh  T  -^,'^**^»  7>thout  the  express 

effectto  tholS  vt  vi  1?^  °^^"°«^a«  ^^s  done  to  give 
«uspending  by  lier  Maiesl;;  S  '""^T  r'"^"''  of  Her  Majelty, 
loni  as  th^  oLctlîte^^^^^^  - 

force,  and  no  longer  S  94??  v-  ***®/f  *\ y'?-'fitould  remain  in 
to  amend  the  chan    M^e  7h    /'*'•', ^f^*  ^^'  '^  ««^^tled  an  Act 

(the  same  ÏÏ  the  Tith  L  V -^  '^  ^^^"^^ 

pealed  tho  Ist,  2d  and  uJlhff  *''  '?  """'l  T'^'^^  ^'«^^i^.  ^e- 
Act,  and  substituted  c^ll  '  ''^^'^'''  ^^  *^«  «^^  Provincial 

This  ActhSbeennïï.tL''7  ^^^.^^^^^^  already  mentioned. 

^.ood  ;  therS  ïhTsÇl^t rS^^^  f  '  "•Pfï'^^  P^  ^« 
vived  by  such  reneal  C  «1^  •  •  ^  ^°*P®"^  ^«*  are  re- 
fiuspende^i  pi$,S  of  îhe  w'^H  f^^''^'^^^-  Thus  the 
law  whioh  caïïôvem  thi«  pLÎT  S  ^'*.  ^Tr«  "^^^^^'  ^^e  only 
in  80  far  as  jîriKtL  il  oZf  "f"'  ^T'^^  ^'"P^"^»  provisions, 
J^ob^inthfîl^^td^XS^^^ 

the  provisiorof  the  4th^' î?  ^**' '^  *^^^  but 

substitute  p^vision    ^  it^^^^i  '*"""'  "^  '^^  ^g^'-^^^  ««  ^ 
to  be  found  iithe  ïmitrSl    i^/'^n*'*'  *  «^°^V  provision 
may  be  consideîed  comS^-    ^^>    '^Cr'quently-  the  repeal 
are^concerï^d     I  deem  ît  m"  ?  ?'  •'  ^^.«"bstitute  provisions   , 
explain  that  îhe  part  Thave  lafe  t^i^  Judgment,  to 

arrestof  tho  accused  wnT  «  J  !  j  ^  *^^  ^'^^^  *°  ordering  the 
the  moment  pSlafoZfKP^'f-i^u*/"'^'^  *«  ^^  ^J  duty, 
was  committeTSd  I  S     ""*'  '*l^  ^'^r  "»«  *^**  »«  «"traie 

thestatute  TiSs  L^te"^V\'^7-^*''l^>  »^«  ^«"•^d'» 
for  the  timo  at  tWs  late  2^"' f  Tk    °^J^'''^?  ^*^'°«  ^««°  ^^ised 

no  alternative  but  ti*de^?«?t  S T  ï^.t''^'  ^  ^'^'  '^'''  ^  ^"^ 
for  the  deciaion  of  a  hiXr  /^V      i  T"^*^,^''''®  '^''^''^^d  the  point 

f^J  say  Zrfdi;,^hlve  don"^'  wte  T*  T""!'^'  ^^^  ^  " 
formaltydirectcdaffkinatm^f  •  P}^  ?®  objection  bemg  one 

person  is  ooCSéd  sŒ^«  '  *  T  ''^?'''  **^«  «^erty  of  the 
ïïmner,  HecSe  whÏÏ?  t  Wared  positively,  and  in  a  definite 
now  deôide.Zt  Lîin  Al  J"^,^«*»on  or  not.    I  therefore 

tound  in  liw  i;«tî««  oî5  r  ^      junsdiction  ;  consequentiy,  I  am 
law,  justice,  and  faimess,  to  order  the  ' immédiate  rilewe 


'iitl 


,^    I 


i  i^ 


4 


4"^»  4 


t 


/ 


126  -:, 

of  .the  prisbners  frew  custodv  upon  £11  the  charges  broiight  bJfom 
me.    Let  tho  prisoners  be  ■discharged. 

Mr.Devlin.—Before  voix  deliver  that  order,  I  trust  you  will 
hear  the  cottnsel  foi'  the  United  States  on  a  matter  of  such  «reat 
importance.     We  désire  to  bring  under  your  notice  this  important 
lact,  that  only  one  application  has  been  made  toyou,  and  that  the 
counsel  who  addressed  you  this  moming  appeared  only  in  the  case 
ot  the  bt.  Albana  bank,  which  has  been  the  subject  of  investieation 
hitherto.     You  are  aware  it  waa  determined  tliat  only  one  case 
could  bo  proceeded  with  at  a  time,  and  therefore  the  application 
addressed  to  you  was  for  the  discharge  of  the  prisoners  in  this 
particular  oase.    You  owe  it  to  the  gentlemen  sent  hère  to  support 
.  what  they  conçoive  to  be  the  just  claims  of  the  United  States 
Irovemment  m  this  matter,  and  to  justice  alao,  to  afiTord  them  a 
reasonableopportunity  of  puttitog  before  this  Court  the  daims  of  their 
cUents.    When  oqly.  one  application  hàa  been  mado,  should  it  be  said 
that  a  Jtfdge  m  a  Bijtish  Court,  where  fair  play  was  peculiàrly  tobe 
expêcted,' should  hâve  disposed  of  six  cases  on  an  application  with- 
regard  to  one  only,  without  the  counsel  for  the  United  States  being 
aUowed  to  mterpose  a  single  objection,  or  offer  a  aingle  remark.  Whàt 
would  be  ^d  of  a  Britiah  Judée  in  such  circumstances  ?    The 
counsel  for  the  defence  know  perfectly  well  that  such  a  case  would 
.  be  utterly  unprecedented.    They  know  that,  having  ha4  the  benefit 
of  your  ruhng,  the  Courts  were  open  to  them  to  ohîsân  for  their 
chentsthat  relief  which  they  had  a  right  to  expect.    But  let  them 
corne  forward  with  their  applications.    H^ve  you  not  issued  six 
warrants  agamst  the  accused  ?     You  hâve"  only  one  warrant  before  * 
vou  nowj  and  only  one  charge.    Therefore,  I  call  on  you  to  hesitate 
before  discharging  them  from  six  other  accusations  which  we  hâve 
not  had  a  sipgle  opportunity  of  addressing  the  Court  on.    Would 
you  order  the  disôharge  of  a  eriminal  accused  on  six  indictments 
because  ao^uitted  on  one,  without  trial  on  the  otheft  ?    You  would' 
npver  sanction  such  a  thing,  and  this  is  what  you  would  be  doin«r 
in  this  caae.    As  a  ji^Jge,  you  are  not  supposed  to  know  that  the 
proceedmgs  m  the  other  cases  are  not  strictly  correct..   If  you 
carry  out  this  order,  it  will  be  said  our  Judges  prejûdged  caaes. 
because,  whde  being  addressed  on  one  they  disposed  of  otliers 
The  character  of  the  judiciary  for  fair  play  is  at  sttâœ  ;  and  though 
there  ar^  in  this  city  men  vho  sympathizo  with  the  enemies 
of  th«  U.S.,  I  havQ.  yet  to  leam  thej-e  is  oné  who  is  jiot  a 
lover  of  fair  play  and  British  justice  to  ail  parties.    I  willstate 
my  conviction  that  if  the  clients  we  represent  hère  are  made  to 
feel  that  when  they  enter  a  Britigh  Court  of  JusticA  thâtr  nUîfti 


^m  îîôtT>ffTîeïM,  wé  àust  béprépared  to  submit  to  the  consé- 
quences.   No  country  m  the  world  has  shown  more  real  faimess 


I    ' 

■ 


•  127 

lie  extradition-TrfuriX 

to  this  iosfttdïkw  -te  ''  ^*^'  combined  to  give  effect 
Goyerm^entTlSJZ'ethtr^  ''k  f^,  "î^  ^'^^^  States 
extradition  righif^rEa^ded^  T^^  '  l^t  '"  *^'  "^^^'^^  *» 

Isenting  our  c£,irwiï-bfli^*rï  opportupity  of  repre- 

.   ^:  S?uï7Ji;f^^'  '  '^^^  no  Jurisaiction  in  this  cas. 

^m  everrpas'e,  aa  toTuiÇ':S>bt;f  ^  '"^'"^^',  *^^  ^^^^^^ 
m  Court.~I  disch^ge  them  i/Wery  case  before  mo 

remarks  3by  c^id  iS^hT^hr^T^  ^?  ^^^«  freeSany 
Court  was  o^er  ^  ^^''*  ^'  °'''"^«  f<^^  t^^^ir  benefit  after  the 

Crown,  which  had^  Est  in  S     ^"^  ^  ^epresentcd  the 

Stat'.^'^hif  ^a^P^^^^^^^^^         aut^orities^  Ae  Lted    ' . 
trust  you  will  aUoJmé  ZÂI  J^u  ^  ^®^*  "''*^^°*^  ««"««rn»  I 
a^eJgmeftt^  ^«  ^«^«  rightiy  understi^d 

ip  ai/woS;7T'"  ''"^  ''  'S'^'  ^'^'^  «^«^  «>«wer  Mr.  DovJin 
Jud^entfîùttàrLtL'S^^  "^  \r^  ^«^«'«»«    ■ 


rtpresenlïmr"  the  ÏEi  r^®    *^  ««owed  one  of  the  gentlemen 

Ustened  to  i  Zîtt "^'  'î'*  ^^^  **^'*  ^«"^  would  Lve 
w  uMer  similar  circumstances.    Undewtending  the  fuU 


^ 


t:  A 


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■j.*;rJ.p»:.fr 


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^ 


128 


T""  1^     }'^  responsibility  m  this  matter,  and  determined  that  he 
should  perform  his  duty  according  to  the  rules  of  British  iustice 
,    he  had  corne  ta  the  conclusion  that,  having  no  jurisdiction  in  oné 
case,  he  could  certainly  hâve  ïione  in  the  othera.    If  he  had  no 
junsdiction  to  arrest  the  accused  on  the  charge  preferred,  he  had 
ûo  nght  to  ^keep  them  m  custody  for  one  moment  longer.    Hé 
knew  now,  that  froip  the  begmmng  of  this  caae  to  the  présent, 
«lat  those  parties  had  been  arrested  wifeout  any  légal  warrant 
4T^  f*  the  w^t  oï^urisdiction  in  this  m#ter  becai^eS^nt', 
after  a  légal  >5t,  desinng  to  administer  Justice  in  ^  (Sadian 
Court  m  the  same  way  and  with  the  same  spmt  of  impartialitv  and 
faorness,  as  it  was,  had  been,  and  would  be,  thaiik  God,  alwavs 

S,^i.       ""'*«' •'^^^^.  ^^  *.."g^*  *^  ^^^  ^^  P^oners  one 
mmute  longer.^  Having  no  jurisdiction  in  one  case  he  had  none  in 

ÎÏ!  »î  ,"'  ^""^  ^''''^^-  ^"^"^'^  ^^^^^'^  ^  warrant  wa«  nuU  and 
the  whole  proceedings  irregular.  w'    ««  »u^ 

Hon.  Mr.  Bose.—There  was  no  application  for  the  discharge  of 
the  pnsoners  on  ^e  other  accusations.  ^ 

wï,^\^''"'''-TH*'^ '''*•.  î*  ^  *^«  *^"<7  °f  a  British  Judge, 

H^^^ite'U'o^nl'sX  "'     "^  "*"°  '  ^""  ^°  ^"*°'^'  *^ 

thetïnf ;.tfTh;]X-t"^^^^  Lr  ^^^^^'  '  ^^"*  ^-- 

„.^.  Cb«r<;-^Not  a  Word  more  on  this  matter.    I  know  the 
weigh   of  the  responsjbihtj  of  such  a  course,  but  I  am'bound  as  a 

rîS?^  fl        ^^5'  ,^y  conscience  and  duty  direct,  wîlhout 
regard  to,  mfluences,  feolmgs  or  conséquences. 


m 


•Yv 


m 


aïways 


PROÇEEDINGS  BEFORE  JITDGE  SMITH 

.       Lieutenant  Bènnett  H.  Youn.r  W  TT  ir  V  u-^®  ^^^^teen,  namelr, 

^feavs  Charles  MooreSwSra^-  Sî^.^'"^"'  ^^'^''^  ^™«^ 
airested,  near  Québec,  on  C  20th  ^f  "'r  ^P""'  ^«^  ^S^^ 
and  brought  back  to  Montrlfli  f!  -^"^  ^^  Deçember,  1864 

;^enroce%ding.i„%K^^^^  ^The  folWing  at^ 

the(îemandfortheirextradC       ^'  before  Justice  Smith,  oa 

PROVfNCB  OP  CANADA.  >    ""         "    ' 
^utrict  0/ Montréal.       $ 

State  of  Vennont,  one  of  the  United  StaJp^Vf  .^^^*'^'  '°  *^ 
-  Î-^^L'P  «^  Montréal,  in  the  Sïïict^?'/  j^T'^l  *""«^'  ^«^ 
this  27th  daj  of  December,  i^  S  vel  L^''''^^^'>^«"  ^^  ^«tt 
eight  hundred  and  sixtyïouï  in  tîe  P.  71  ^'^-^"^  *»^°««and 
Mon^eal  in  the  Districfof  Mieï  So^^r?".^  '^'  '^y  ^ 
«gned,  the  Honorable  JamessS  ^T??"^'  ^^^""^^  *^e  unde> 
?f  the  Superior  Court  ft  W  c^^T  J^  S''  ^"J^^^'^  «^"««««^ 
^    m  of  Squire  Turner  ïea^s  rLr?!rife  ^  ^'^^  P^-esence  and  hear^ 

Youag  Marcua  SpvLV^Twïï  H  H  k^^*«^^'  ^«'^«t*  H. 
chargea  befôre  me,  up^rcomS  ^- /"^c^^Qson,  who  are  now   > 

«nder  the  pn>visîo'n^P:?  ^^1  Sw^^  V'^*^'  h.for.ml 
.  -Queen  and  the  United  States  of  A  mY-^T  ^*'*  ^^jesty  the 
behalf  made,  ^ith  halTcoml^r^fK.'  «?/*  «?''  «tatutis  i^^  thaî 
United  Stat4  of  AmSa  ThTtn  -^"^  *^'  Jurisdiction  of  the 
Treaty  between  nlrStt  L  0?,r^  TT  ^«^'^«'^  '^  the 
Amerîca,  to  wit  :  ^    ^  ^^  ^^®®»  "^^  «^e  United  States  of 

"swIïrî^Êlnn^jfe^  Charles  Moore 

H^son,  on,the  nineteen^TaV  ortï^ilr'i'  "f  ^  ^'"^^"^  H.  Hutôh! 
St.  Albans  aforesaid,  k  tKte  of  v!  ""î  P^*'  **  <^«  *<^^  of 
Statesof  Ameriba,Md  wiL^n  ft  ^^!;^l?*'  ^«  «^  *he  United 
States  of  América,'bdn/£  anJ  ,-r^''*'«»  «^  tho  said  United 
sive  weapons  and  SSa^^tT  T^'^^'^-^oC^ 
rpvolvers,  loaded  with  powd^V^^  T  ii  ^'!**'^  cpmmonly ,  caUed 
one  Samuel  Breck  flSsly  dTd^^*"^  '''^^^  ^  ^^  "Po^ 
aaid  Samuel  Br^r^V  j^  boSJL  1.^  J!?  "^J^*''  ^^  ^im  %  !_ 

^^a  certwh  sum  of  mSv.  iTJ!!' *™xl    '^'^  ^^^is  life  dîd  pufe. 

\  1  >  «uu 


# 


»j!(^î^i  V^lgiàisZU')!^»!*» 


'i 

il 
II 


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,:,    ri 


»    ' 


180  .: 

of  the  value  of  three  hundred  dollars  current  m'oney  aforesaid,  of 
the  moneysand  property  of  the  said  Samuel  BrecÊ,  and  anotliel- 
hia  co-partner  mtrade,  to  wit,  one  Jonathan  Weathertrae,  from  the 
.  Person  and  against  the  wiU  of  the  eaid  Samuel  Breck,  then  and 
there  felomously  and  ^lolently  did  steal,  take  and  carry  away 
against  the  form  of  the  Statutea  of  the  said  State  of  Vermint,  and 
agamst  the  peace  and  dignity  of  the  said*  State  " 

e  h  a°d  saith  :-0n  the  mneteenth  dav  of  October  last,  I  was  fiS- 

S^W.   AiK"**^r^,^"V^''  ^''■^"  ^*"^^°g  institution  known  aa 
the  St.  Albans  bank  in  the  town  of  St.  Albans  aforesaid,  bétween  ' 
the  hoursof  three  and  four  o'clock  of  that  day,  in  the  aftemoon 
•    |wo  men,  étrangers  to  me,  entered  the  bank.    They  came  up  iio 
the  front  of  the  counter.     I  stepped  along  to  the  counter.     Thev 
immediately  presented  each  of  them  a  revolver  to  my  breast     I 
wa*  about  three  feet  from  thèm  at  this  time.    I  rwognize  one  of  ' 
thèse  men  now  m  Court.     His  name  is  M*r«ns  Spurr.     I  îrame- 
diately  went  mto  the  Directors'  room,  which  i^  adjoinin*'.    Isuc- 
ceeded  in  cloâing  the  door  nearly,  alid  they  rushed  agamst  ït  and 
forced  it  open.    The  door  struck  me  in  the  forehead  and-lbruiSed 
me.     Immediately  one    of  them  named   Collins    seizèd  me  by 
the  shoulder,  and  presentmg  a  revolver  at  the  same  time  to  my 
head,  and  the  said^-Marcua  Spurr  also  presented  a  revolver  at 
my  head,  and  they  said  to-'me,  that  if  I  gave  any  alarm  or  made 
any  résistance  they  would  blow  my  brains  out.    At  this  time  three 
other  parties  came  mto  the  bank,  who  were  then  ànd  still  are 
strangers  to  me.    The  said  Collins-  then  asked  me  where  we  kept 
OUT  gold  and  sUver.    I  told  him  we  had  no  gold.    He-  then  asked 
meifwehadanvsilver.    I  tôld  him  we  had.    He  asked  me  where 
it  was.    I  told  him  it  was  m  a  safe,  and  pointed  it  out  to  him. 
Then  he,  the  said  Colhns,  admmistered  to  me,  and  to  one  Martin 
A.  Seymour,  a  clerk  in  the  bank,  some  sort  of  an  oath,  to  the 
effect  that  we  would  not  give  any  alarm,  or  fire  on  the  Confederate 
soldiers.    Then  they  proceeded  to  pack  up  the  money,  arid  they 
then  ordered  me  to  open  the  safe  in  the  I^iwtetors'  room.    I  opened 
it,  and  they  immediately  pulled  out  two  or  three  bags  of  sUver 
about  fourteen  hundred  dollais'  worth.    One  remarked  to  the' 
other,  "  We  cannot  carry  so  much."    Thereupon  they  broke  open 
the  bags  and  filled  their  pookets.    They  took  ail  they  could  cjÉry 
They  took  also  ail  the  bills  of  the  bank  and  the  bills  oî  other;  Snks 
in  our  safe,  aad  a  lot  of  money  of  the  UnSted  States,  commonly 
known  as  greenbacks.    During  the  time  they  were  in  the  bank 
they  locked  the  door  of  the  bank,  and  some  person  came  to  the 
ioQT  and  knocked  &f  admittance.    They^eponod  thfrdoor,  and  the 


person  came  m,  and  this  person  was  one  Samuel  Breck  of  St» 

^  ■       .     .     .-«' 


^■llk 


.  ,  ,  ,  131  * 

,       took  hold  of  him  and  forced  him  aSlf  *^T  P"'""^»--     ^W 
1»8  money,  which  he  had  in  hi*°S      H?"î*'''  ^^'^  •^«'"«"ded 
question  w  th  them,  and  said  thât  it  w».   '  •    .  ''^«^°  **^  <^«batè  the 
to  him,  and  said  that  héhad  belT  ^"' -î"  P'^P^""*^-    I  «Me 
they  had  robbed  us,  and  as  le  y  hS  Z"  ''  "^  *^  *^«'°-    I  «aid 
giveup  thé  money.     They  LShim  î^^^'t^'  were.obUgéd  to 
•    learnt  Ébat  the  amoant  thfv  S  f.      i- ^  *^®  Directors'  room.    I 
doUars  Amencan  cur°enc7    Thi  ""  ^T  T  ^^«"tYour  hundred 
Breck  that  if  he  gav"an7alarm  f./"  'î.'*u^ 
.      another  rap  at  thf  door  ^by  some  ol       v  "^""^  ^'^'     '^^^'^  ^^ 
Thej  opened  the  door,  a  Jthe  r^rson  "^^^T^  *\«''^  ^^"^'^^n. 
the  store  of  J^oseph  S.  Weeks   Si^        ?  '^'^^^^  ^«^  »  «lerk  in 
der  and  forced  hi^  in  J  £  Vre^t  rCn^^  ^"^  S^  *^«  «houl^ 
remain  there-with  the  rest  of  f,  1  -f      "*""'  *°^  ^^'^«'•ed  him  to 
room.    About  this  time  iteard  8om«  fi  •''' -''Î:^  ^^^«P*  i»  that 
opposite  the  window  and  LTfnto  the^XlT  ^^Vt^?*^'    ^«^^ 
flons  on  horseback  r  din-  to  anS  frl     i?     '  ^""^  ^  *^«"  «aw  per- 
afc  the  citizens  of  St  llbtr-l2  J^/T'^T  «^^S  ^evol^rs 
thèse  parties  left  the  bank  îea;inîrn^'^.l^^  afterwards  three  of 
.us.    Jhese  aiso  left  in  a  few TmVtes  'n*  •  ^*"^.  t  «"^^«  «^«^ 
jn^  thèse  û^e  persons  werl  rctkTiï  c^nc^r^rl.  *^/''  r'''^' 
to  the  five  personswho  came  ift^+î    k    ;    ^  »""de,  of  course, 

robberjasafcresaid,o?wSfiv^t,ï'  ^!f^  ^'^'^  committed  the 
one  of  the  prisonei.  nfwtl'^d'i^rr  te^'  ""'''''  «P-      " 

Cros8-e£amined  on  behalf  nf  ivl  n  ^^\^^^' 
been  e^„^ed  before  ofalw^ t^^^^^^^^        ^^^^-^I  bave 
tJuJed  the  facts  respecting  thesfmE  ni  !^®  "'^"-    ^  de- 
relàted^n  that  occaaÎAn  fS  «•       ""f**®"  on  that  occasion,  and  I    ' 
Albans  on  thi  ^nXn  ^rStT/'^^w^  P'*-^*  St' 

SpurT,andComnspresentVpi8t(5^ar;nf^^    «lY^'î'  *^«  P^^^ner 
the  programme  wai  and  wuR-         ""^  ^^*'*'  ^  asked  them  what 

Confede?.te  riS,''dttSe1 1  Tar/  ^^  *'^^  «^^  *^«^  ^-e 
torobandplunder.M  Gen  4aS?        K^-  """-^  *^  come  north 

chef,  was  because  I  suppTd  tL^J^^^^ 
pomts   and  this  was  n7ÏÏed  of  me   ""pf-  ""^^A  P^^°>i^«'»t 
omitted   t  intentionalljr  or  rt!l  sL  tbat  ?T«^  ^^'^  ^^^'^^^^-^ 
way  or  the  other.    I  LteàihJf^Z   l     l  ^***  ^<>  intention 
ia  iny  examination-ii-cff  TZ^.  ï^tllr^f  «'«^ed  befi 


bad  was  in  his  tands  whWu >L  tIkTn  fW>?h;r'''Sï;  *^*  ^'•««?^*       X 


■<t.S 


■^«îJ*   (4»&Èl^..*i-'-y 


^..L  >:.A        -Â  V 


(Lflltt^JSl 


'lTî«I!tW'''à^^ 


,  t,^   M 


■}>!. 


,:..  I 


'î 


^^^!â|,ç»i^^£!^ 


i 


.7  -^^^ 

Mreet  in  wWch  the  firing  waa,  runs  nearly  north  and  south.   There 
appeared  to  be  conYusion  among  the  party  riding  abtfut,  some  riding 
jm  ope  direction  and  some  in  another.    I  next  saw  them  after  the 
five  had  left  the  bank  and  after  I  came  out  oa  the  steps     Thev 
were  more  in  order  at  that  time— were  coUected  together,  and 
were  nding  north.    I  could  not  teU  whether  they  were  under  the 
command  of  anybody  or  not  at  that  time.     They  were  at  the 
northem  end  of  the  bank.    There  were  a  good  many  people  in  the 
streets^iihen,  more  than  usual.    After  I  came  out  on  the  steps  I 
saw  some'  shots  fired,  but  not  many.    I  heard  reports,  but  I  Sàw 
no  shots  fired.    I  say,  on  reHection,  that  I  saw  some  shots  fired  * 
after  I  came  out.    I  cannot  tell  who  fired  thèse  shots.     I  think  I 
know  pretty  weU  what  goes  on  in  St.  Albans  of  any  interest 
Being  aaked  whether  or  no  one  or  more  of  the  party  was  wounded 
at  St.  Albans  on  that  occasion,  I  say  I  heard  suph  reports,  and 
agam  heard  them  contradictéd.    I  do  not  know  whether^it  is  known 
or  not  who  fired  on  the  party.'    I  do  not  know  whether  any  citizen 
fired  on  the  party,  and  I  do  not  know  that  I  am  bound  to  say  what 
I  beheve.     I  saw  a  large  bunch  of  money  inMr.  Breck's  hand 
and  he  told  me  there  was  about  four  hundred  dollars,  and  I  believed 
him.     Being  aaked  why  I  state  my  belief  in  référence  to  Mr 
Breck  s  money  and  refuse  to  state  my  belief  in  référence  to  the 
finng  on  the  party,  I  say  I  saw  Mr.  Breck's  money  and  heard  his 
statement  on  the  spot^  and  the  other,  I  did  not  see  the  party  fired 
on,  but  I  heard  that  they  were,  and  also  I  heard  that  report  con- 
tradicted.    I  know  Mr.  Fuller  of  St.  Albans.    I  hâve  had  conver- 
sation with  said  Mr.  Fuller.    He  made  statements  to  me  about 
what  was  going  on  generallv.     He  never  told  me  anything.  p*- 
ticularly  about  the  firing.    I  heard  him  make  statements  genendly 
but  not  more  to  me  than  to  any  one  else.    I  heard  him  Sfey  that  he 
had  snâpped  at  them,  and  inferréd  that  he  meant  he  had  snapped 
a  percussion  cap  at  them.    I  did  not  know  anything  about  whSér 
there  was  any  powder  or  bail  near  when  he  snapped  th©  percussion 
caps.    I  thmk  perhaps  he  waa  trying  to  fire  at  them,  and  that  his 
gun  or  pistol  missed  fire.    Being  aaked  if  I  hâve  any  doubt  as  to 
this  bemg  his  mtention,  I  say  that  I  did  not  see  the  transaction. 
I  do  not  know  where  Fuller  was  at  that  time.     I  know  that  a 
citizen  was  shot  that  day.    I  understand  that  he  was  shot  in  the 
Main  Street  at  St.  Albans.    I  heàrd  it  reported  that  he  was  shot 
near  the  -place  where  Fuller  was  trying  to  fire  upon  the  party. 
This  citizen  fell  to  the  north  of  the  bank  ;  was  shot  then,  about 
fifteen  or  twcnty  rods  flrom  it.    I  believe  he  was  shot  by  one  of  the 
party.    The  place  where  he  fell  was  between  the  bank  and  the 
>lace  where  I  saw  the  party  aJl  riding  off  in  a  hndy.     T  heligve— I 
-lôw  fërsonally— that  there  werè  other  l>ank8  robbed  at  St.  Albans 


pis 
k5 


L®iu>-Ai., 


i=! 


^'i' 


th.   There 
orne  riding 
1  after  the 
ps..   They 
ether,  and 
under  the 
jre  at  the 
>ple  in  the 
le  steps  I 
but  I  âàw 
ihots  fired* 
I  think  I 
^  interest. 
I  wounded 
K)rt8^  and 
;  is  known 
ny  citizea 
I  say  what 
k's  hand, 
[  believed 
e  to  Mr. 
ice  to  the 
heard  his 
arty  fired 
jport  con- 
d  conver- 
tne  about 
hing.  p#- 
jenerally, 
y  that  he 
[  snapped 
;  whetiier 
ercussion 
l  that  his 
ubt  as  to 
nsaction. 
V  that  a 
)t  in  the 
was  shot 
e  party. 
Q,  aboat 
le  of  the 
and  the 
lieve— !_,  , 
.  Albans 


•        ;  133 

same  as  We  had  Éeen    î  dS  l?"^.*'''.?^^  ^^^  ^««n  ^«bbed;  the 
«et  fire  to  ;  llde'rs  Jd^he  1^^^^^^^  »-g^  had  been  ^ 

Atwood  had  been  latteinDted  t  h?  .  ^°*^^  *"•*  *  «*°^«  of  Mr. 
lect  of  any  other  r  I  Jm  »»  \v\  °°  ^^®-  ^  ^^  «•>*  reçol- 
.  the  citizenf  weïe^'-take'n  TrisS  aïS^ÏÏ'  11"  "  *  f  "^^  ^^ 
Oreen  at  St.  Albans  on  KTc^asion  A"^*i^  ^''^^ 
«ome*time  the  party  was  nrettv  S'  •  ^^'''^^-  •'"'^S®  *^*  ^«^ 
land  Mr.  Seyiïour  wZin  thJ^-     /'^.P^'^^^^'^  «^  *be  tow^. 

room,  when  Mr.  Breck  came  .n^  P  •  ?^  ,*^'®  Directors' 
the  party  had  possesseS  themseLs  Ï^ZZ  *"  ^^,'^^\ê  i«. 
and  were  packin^  un  a  n«rf  !>p  -a  u  ^^  ™^°®3^  ^f  thed)ank, 
that  there  were  five  Vth^'l^f  '^  \^,"^  ,^«  «"'ered.    Pfwear 

-me  in.  I  -et%fat* M^^? ^^^^^^^ thTh''^ ^^ 
Breck's  money  was  takpn  ft^m  iT-      V  j         ."^  *'^®  "^^nk  when 

man  Breck  is^  Tthink  îe^^î  „  £  J  ^v°'*  ^'^"^  ^^**  ««""t^y 

J-esideci  there  long  enoui^h  to  bennS^^^^  «f  Vermont,  because  he  h^s 

Albanî  I  am  aware  St  thpr.  ^        • 'm  ^^  ^^^^  ^  «^0^^  »*  St.    ' 

States  on  the  Steen A  of  O.Sf  *  i''".'^  ^^I  '"^«^"8  '«^  *l^«  United 

The  Northern  n^ont  niTll  Îk  ^^^"^  ^^,*'  *"<^  «*"!  ^^  ^aging  there 

Southen^Xrcaîthel  t"^^^^^^  ^***^''  '"'  "^" 

the  Confed^La^  Stetes  of irri^'^â^^^  i^T  ^«^^-^^ m  called - 

teke  to  assume.     Vermont  i«  nnL     r  II  *^o  "''"^  ^^«7  ^"der- 

Northem  section,  c^I^temsekes  the*Nni*'''%?r'^S  *^« 
war  has  been  ra^nns  four  or  fi  il  Northern  States.    This 

Confederate  StS  WU /priH  '  «'^"'^S  that  time  the  ^ 
The  States  whichcIafrtotnarTjîrV^Ti"'^^  ^'""STess. 

yirffnia,NorthandSthCaXa  lolJ^^^^?^''''  ^'' 
but  I  do  not  know  that  she  does^nw     «^^'      "*^*'"~^^*^*°»adid, 

The  State  of  Vermont Tas  ZSrr'*  '^  P^'^^^"  of  Temiessee. 
tiie  carrying  on  of  th4  wï     îï^**  """"f/  *^^  "'«^  *«^ards 

Octoberf  afecruLg  offiTer  and  stetr-l^r^^'.r^r^*^^"*^  «^ 
authorities  recruited  men  for  thf  v^ÏT^"^  "'*®'"'  *^®  «municipal 

called  upon  to  do  fK,mTme  tî,  te  ^tr*?""^'  ^  'V^' 
was  no  money  in  our  hanï  iS  •  ^  ,  Government.  There 
there  was  beL^ngto  ïe  sS^î^v*"  ^^'  ^^^^  States;  but 
leaying  St.  aC  tre  |ttf  k'TÎI  ^he  party, 'after 
jg^'^.  A  do  W  ^^^ 


bi  •  •'  ^\^  "--ïeTth^^^^^         -r'* 

bank  jomed  with  the  First  National  b^^k^iu  off^ri'ng't  t^tZ 


nul' 


■<*? 


'     Ml 


'  j&^ 


j-«jii  i^'ii^i^-ffeiv^Hiî-  ^'W'x  ?!  ►   *t    '■'''>  -x^*! 


î 


184 

for  the  money,  hj  à  placard,  one  </f  which  is  filed      T  l,«v^ 
seen  the  term  m  raid  "  u^d  pretty  ofte^  d™.  the  war  •    I  nnd^ 
stand  that  raiding  nia  the  mirch  A  Timy  i^to  the  enemX 
country  :  by  army,  I  nean  a  large  o^  a  SaluLC  of  sS« 
I  haye  heard  of  Coloifl  Dalghr^a  and  another^neS  maS 

Jvupatnck.     Colonel  jDalghreen  penôtrated  very  nearlv  to  RinK 

newapaper  called  the  "  New  York  World  •»  «n^T  Iil  iT  '^^^^ 
Generarcalled  M^or  Generar^x  K  b  cSÎi  JmeZln** 
deparhnent  which  includes  Vermont.  He  tTgeneï^^oMh™ 
tï^  fott*?*îî  'J  ^°^?T'  ^  ^^-^  '^  proclamatfon^  car^  out  on 
doubUuKl?.^^  '^  ^^'^  ""°*.'^y  ^'""^'^  »«•  I  hâve  no 
-   Ynrt  W    M  »  h°f  TTi:  now  showed  to  me,  being  the  «  New 

■    1t!1         7      *^®  ^^^"^^  newspaper  pubUshed-iù  Né^  York- 

rP^fiv  +  tÎ    ''«stof  my  bêhef,  the  proclamation  is  published  cor- 
rectly^There  has  not  been,  to  ihe  best  of  my  beMef,  aSy  appUcatiôn 

an  armed  baud  of  raiders,  on  the  19th  ôct    ifei  „f  Z'  T  V  ''?"  robbe*bjr 
bank  biUs,  viz.  :  (hère  followa  the  d«»Pr^^î.-;'„  %       ^^°  following  notes  imd 

iresiden^t  Fim  Ltfonîi  IZ^^i^^^^i.Xcl'c^^^^^^  «""-'^ 

t  The  following  is  the  Proclamation  referred  to  :  gL 

Hbao  QOABMBq,    DlPABTMINT   Or  TBI  Ea8T, 

General  Order»,  No.  97.  J^tto  York  City,  December  141A,  1864.     " 

rebel  m.arauJëS'whï  we^ri"„f,tÏ!.f  """IT""*  "*.  '^i''  ^'''^  <!«"*««»  that  the    " 
been  discharged"rom âr^f  fnd  fhat  oZ^rLT'^  '-^^'^  "'  ^''  ^""""'.  hare 
aUon  in  Qaiida/ the  oTmLndii.GenemrdeZ^^^^ 

frontier  towns  to  adopt  thè  most  bromDt!S  imlJ    *^"''  ***  ^^/  I^^P'»  '>^*''» 
of  their  lives  and  pfoîJerty  ^    ^     ^  *"''*'"'*  measures  for  the  secoritj 

fbnL"".»d?pTerut"an"d"rr/:^^^^^^^^  ^-  cas. 

or  persons  acting  ander  commissions  fromfhl  S  '  TJ*''.''?'"  ^^  ""«""Jderi, 
to  shoot  down  the TpreS  if  DO..Z  wwu^'!u*^°'^*'"'»  Richmond, 
crimes  :  or  if  H  b«neoeraîî  wJth  .  Tiew  tïthJ^l  nJn*  »''«/°°"»"«'îon  of  thei/ 
between  the  United  Stot^  aid  Mn.!^-  fJ  "P*""  '°  ''"»"  t^e  boandaiy 
pursuethemwhJwTertïeVmâîuke  '?u^^^  *"  directed  to<.- 

circumsunces,  to  be%Vr4idS  tVft'  be  sentTresi  tL"**  ""^"^ 
trial  and  panisbteent  by  martUl  îaw.  -     *"  head  quarten  fcr 


\ 


^^^^^^^'^^^^'szss?;^:^^^^^^ 


cuatom  is  for  ail  CS  nane™  Ji    °'  ^"^^'  dp^uments"?^  The 

ordinary  way  in  which  S^'arTl^^ii^^^^^  J*'  '«  '"^^ 
not  recoUeot  any  instance  m  xXlnuT^       r  ^  *^®  P^'^^Jic.    I  do 

the  «New  York  World  "  ofJL  «;^^  «f  General  Dix,  aa  àppears  in 
tliat  day,  a  copv  of  wWph  is  noVS  *  ^  '  ^^  *^  ^'""^  ^«'^«^  «^ 

St.  Albans  bankTald  Sn^^  ne^^^^^^^  ^""^  t^" 

were  not  in  unifom  but  ^n  th!  ÎT   °^  ^^  ^^  Samuel  Breck»   - 
clothes,  andCe^'t^tst^f  thTnrrl^^"^"^^  ^"""^^  ^  «^«i»^' 
seen  in  the  streets,  to  whom  I  Lve  Î^S^'^^^'^'^^'^i^^V^rty 
f  northerly  direction  îCe  irZ  r «r*^  ""  ^'^^^S  "^^en  o«Z 
.  but  I  hâve  no  Personal  kZEeô/  S^J  caje  from  Canada  ; . 
fiome  of  the  money  taken  fW>m  fl  1   f,?*'*' .  ^^'^^  ^  ««d  that 

had  some  money  on  deiSt    anHnî  '  Î-T^°>  say  that  they 

^tWn^ISrtâtor^^  ÇrganWng  hostile  expédition» 

of  déprédation  within  our  own  /uchin  .  "  «y'»""»  after  committinncU 
i"^^P«?"»>leto  proteot  oSr  ckl^^nd  toU^^„tV'*"i'''°f"'^  having  bfcome 
from  robberj  and  murder.  '"'""'  '^'°'"  mcendiarism,  and  our  people 

D.  T.  Vam  Bab«n,  O.A.A.G.  ,^^  commknd  of  Majob-Gw.iùi  Du. 

•  The  followlngls  the  Proclamation:  ' 

HiADdUAnTMa  liBPART«MT  or  TH.  East 
Oateroi  Or«fcr.,  No.  lOO.  ^""  ^<";*  "'ï,  £>*cembir  17M,  1864,      " 

portion  of  De^ÏL^nf  GenirÏÏ  Ml* '^o/****'  *»^'»«  disappro^  of  that' 

rar^-^--^S^.r^^?h^ 
;tehS^  ---4  pg. 

for  order..  before  crossing  the  ^^^^^^;^^l^^^ 

Chab«,0.  JoBi„,  Major  and  Aide-deVip'^'^^"""'^°'-'^'»A-A.O:  .. 


■  if' 


■  «■«"■• 


;|i! 

'  .vi 


J- 


*    «  »  ■  ■ 


i.        Wl 


186 

pnaonere.  ^^"^  '°  ***®  présence  of  the 

Swon,  &t  .h,  .,,„,^™S  NEWTON  BISHOP. 

seventh  day  of  December,  one  ( 

thousand  eight  hundred  and  f 

sixty-four.  I 

(Signed)        J.  Smith,  J.S.C. 

•  V^^fkLfTZ:^ol'''n^  Tti  of  Kontuck,.  one  of  the 
District  of  Montréal  Ser'  ,^^n  î'i.  V"*^-  ?^  ^°"*^«^'  i»  the 
Canada  aboui  three  w^eks  J^  '^'%^-^  hâve  been  in 

of  that  time  in  prison  In  thintv     trlî    f  '"Toronto,  and  a  part 
I  say  that  I  knîw  ?hem  S     l^m..nT  ^'"•'''"^  "*  **'"  P'^^^^' 

William  H.  Hutehinson  ànd  SI  •  ^  '"  Swager,  Marcus  Spurr, 
this  Court.     lWrnowîr?w?7fK^"'^''^"'^"'«''^»d"o^h^^^^^ 

with  in  Gaol  Êere.  Twe  beenLd  ^J  ST^  .^°  acquaintance 
aforesaid,  were  robbed  Tcannot^it  rt../!'/*"^/*^  ^*-  A>'>a«« 
hâve  been  in  Com-Vl  oVerSîb.?         ^  ^'''*^  ^>^-     «bce  I 

^^as  robbeAhattsirf  c\tt  e^^^^^ 

several  persoàs  thaf  *!,«  Ka,.i,  f?  ^ourt.    I  heard  from 

Mr.  D.Saind  3*,^^eX^  roSbed.^^I  heard  this  froS 

thatanymaS^KbbeTL^^^^^^  the  pisoners  say 

notaditth^irSC  ^fnr^^^^^^^^^^^ 
had  been  in  St.  Alban^Sharf  hiT^T  "^^''^^  *«'°«  ^^^  they 
that  they >ad  tâen  the  °  o^^t  f  ^  ïî"^  t''?  "^  ^'^^  ^'^  banks,  anî 
thev ha4  taken  from  tLïd  LnW*'''  ^A^f^'-t^'^  «^^  ^^^  «"«^ 
dolfars.  I  wish  to  add  thïl»  ^TT^^^  ^'^^  ^''''^'^^  thousand 
Thçy  never Zd  L^  ^^  **'^  °°*^°°'^  "!««  this  as  robberv 

conTeSn  which  tîôT  Z^  ÏT  '°«T^  "^  n^atteî^^^e 
And  which  I  hâve  hetb  tfore  ^Td"  '^'  PT"?"^  ^"^  '"^««ïf' 
,^-ch  was  laat  Monday  we^k     rf^     '•'^'""^^,  ''"''  «"^  »^««t 
'Pre«ace    tha^Tn^  {  j   .,    ^'^^  P^o^ers  aiso  stated  in  mv 

.j^j  '    -    »  "V-   i  .TM  nol  in  8t.  Albam  m  tbe  monlh  of  Oolober 


\ 


|137 

ea«h  other  'ind  il con^^rT^^'ll^^^^^l  t.hW«^  and  assUd 
money  f,x>m  the  banks  of  sT.  a£  and  1"V^'  .^'^'"^  '^^  *h« 
mitted  during  the  continuance  cf  tr^ii  ?  '*'''"'  "'^  ''*''°- 

whetîS;;'ard"int^^^^^^^^  and  do  not  know 

that  they  were  at  St.  San  t^'t^f  "'  *^'^  '^'"'"^^  *«  °>e 
aiso  admitted  to  me  that  they  w2  fif *  ^."'"T  *^S9ther.  They 
of  taking  the  monej  a«d  bumin7  tLt?  ^^f'^l^»-  Ç^  the  purpose 
Bonerssay,  that  one  man  wT^Cdod^on  th2  *'''  •""'^  ?«  î^'" 
one  or  two  of  the  prisoners  sav  thaï  fî«  i,  f  ^',*"''n.  I  heard 
recollect  whîch  said  it.   TalsTheard  ?k  J    "^  "'"'■     ^  ^"^  "°* 

diately  after  the  raid,  they  S  ^ctf  ^T"^""  «"^^  **'  i'^'^e- 

mentioned  to  me  bj  one  of  them  tuTÏ   j-î  "^  ^"^^  circumstances 

federate  army.    Tlferdid  not  tS,t ti'wf  T"  ^^°»  «>«  Con- 

before  going  to  St.  YCs  and  iTav^  t?  '^'f  ^""^  '°  ^^nada 

ttejhadbJeninCanad7beforeit:\  «"*  T'  '^^' 

.  saw  two  of  them  in  Canada  frnS  If  *    ?\'  ^}^^^-    ^  ^^^^  I 

last,  vie.  :  Mr.  Young  aSd  M?^  ^^  *™*t*^  *"  ^^^  '^f  August 

Toronto,  and  Mr.  sZ  ât  thf  "àitko,^  %•  ^"  ï?'"«  ^^ 

<iid  not  know  them  before  thïï  tîmï     t       "•*''  ^"'«ara  Falls.    I 

at  Toronto,  and  Sp^  aU^C  £  J  ^"^  jntroduced  to  Young 

person.  I  do  not&  thefr  n^"  ^tT'  ^"l  ""'  ^^  ^'^^  «^« 
H.  Young  waa  engaired  in  in^K  ?'  ^.*^<' "»*  ^^ovr  that  Bennett 
Mr.  Spu,?  either  Tdo  no7kn"''T  ?  ?"^'^'^  **  ^^a*  ««^e,  or 
Canada  was.  ïhey^^d  not  Jnîr  ''^'*  't'^"  *^^>°*  ''^  visiting 
IJ^ey  djd  not  tell  mJ  that  t.;1Zt7  tot%*^^.'"r  «^^« 
their  friends.     I  do  nnf  tnn Jk  ^^^P^®**^",  ">  oe  found  by  gome  of 

tnne  about  the  ffrst  of  August^ast  and  '^  "^  S*".*^"^  ^""^  ^''^  ««* 
the  twenty-fifth  of  thelS  ih  l'^Tf  l'^^'^  ""t^  about 
-7  «*ay  j  epent  part  ofVS^al  ToJol^  ^'^f''  ^""°è 
J^iagara  Falls,  Ganadian  su/    tL      /«"^onto,  and  part  at  the 

that  I  aaw  said  yX     I  cannot  s^lS^  î"^  ^'^'^«  ^^^^^  I  '«« 
I  saw  him  in  Toronto^  untilî?eft%^^''  ï"/*'  *'~°'  <*«  ««»« 
«neaged  in  the  study  of  divinitvdnrîî    î-'"''    ^°^  *^*  h«  ^W- 
didnot  appear  like  a  mL  11     ^  ^"""S  hw  stay  at  Toronto.    He 

ahK,  abouJrhrsretiriïK'^^^^^^^  ?"¥  i°^«*  ^«^^  ^0"^ 
P-n.Iy^fbreI.™ïiS^i'^^  , 


■s^ 


.ii 


-.'    Fil 


ii;!! 


rr;»;^ll' 


^>HjV* 


^■■^-y> 


^l'^'ir  '     TT  ^-BW,  -y5»gspjawB^'7y  ;'ft^mSi^''k^e<liyvi^fi^,J;ji«i^i^<^mH^fpmfll^ 


wmmrmmm^iffm 


r 


l- 


138 

reoollect  having  met  CoUin?  and  YouBjf^iethsr     I  ha.«  n«f  ™«t 

tùe  othere  said  to  be  concerned  in  the  raid.  ^ 

J^J^^f-^amined  on  behalf  of  the  Confederate  Stites  —I  am  ^ 

^fÉ'^M^^'  l  ^  ^"^^  ""'"'^  '»  ««^«ral  States  rî  beLZd 
to  John;H  Morgan's  command,  Second  Kentueky  Cavalrv  cSm    ■ 
ma^ded  bj  Col.  Duke  at  that  time.    When  I  saw  Lrra^^W 
at  Chcago,  during  the  Convention  in  August  lasf,  I  SeSf 

C  ?  *?*  ^f.™P  Douglass  ;  there  was  an  organization  coin»  on 
^hl  tV'"'  °>f  *  A*  *^^*.  '™^-  I  ^a«  told  by  s'orne  of  my  frK^ 
W  .K  °.'.î  *"  ^^  Confederate  soldiera,  and^also  by  S^^^d 
I Cinfoife  ^^""in*?  ^Pr"'  ^^~  ^"  *^^  Confederate  ?Z 
r«^îf  io  T^  **"""^'  *¥  **"**'  ^  ^a^  »"  Chicago  that  a  raid  o^ 
raids^  was  bemg  organized  therq  for  the  pûrpose  of  plmideri^ranrî 
burnrng  the  Northern  tewns  on  the  fLS.    f  Sraware^tS 

■    ft^r'^'^^f  ^«^«ïgandSpurrwere  m  that  orga^ation.     I  Z. 

aware  that  large  quanfcities  of  anns  and  materials^war  werê  stored 

^     m  Chicago  during  tlie  month  of  August  last.     ïhereTs  no  reS 

u"Sfo™  "  Kttrt  ^-"^^^^  '"'*'^-  ^«'  theyTn'auC 
umrorms.     It  is  a  fact^hat  m  many  «ases  they,  the  Confederat«  - 

eS'  ^r  «'""  ^*"  ^^^"^^  ^"  Uiited  States^ 'uniL«  In  ?h^ 
course  of  my  expérience,  I  hâve  witnesssed  th^  desTïSétiôn  of  nri 
vatepropertyby  United  States  troops.  I  havEeeSSe^A; 
them  myself,  Ijeing  at  the  time  a  soldUer.  I  &  a  nVZte  ^m,  J 
bur^ng  at-Huntevilîe,  AlaW,  in  1861,  sifLr  TtatSe^ 
bh,lo.  I  was  under  arrest  at  the  tiine  ;  a&r  ^y  releaae  I  w^ 
^^^f  A^^^'  '/*^""*  *°^  soldiers  of  the  tj»ÊÎ  Stetes  amy 

h.i^m:^'^  '^^  positrvely  that  I  saw  any  other  instances  ofdestA^ 

knoBT  to  be  true.  I  saw  Çomns  in  Chicago  at  Se  BamXeltw 
Young  and  Spurr.  In  th^  course  of  the  conyer«itiïïlh^wîtî^ 
the  pnsoners  m  Gaol,  upoà  evenr  occasion  «107^^  me,  tjat  th^ 

TlZ'ï  n  ^^"^  ^"^  ""«^^  ^^*  *»^«  express  ordersof^Tcon- 
federate  Governinent,  and  further  I  say  L  and  hâve  siimâ  the 

ofZpâfr^*'"  '""^^  '"'^  ^^«  '  -^  -^  in  Wsint 

Swo.before^^rLt.;5T^^  ^-  BETTERSWORTH.         . 
thifl  twenty-eigbth  day  of  >  • 

-  -December,  1864.        :      j 

c^^earr-i:  SMITH,  j:i:c 


lA 


\  " 


139  ,     ' 

Breck  &  WeatherbeT  and  ^^  w        °^^'  ^^®  -^^  ^û^î  «ame  of 

the  hours  of  thTlTCfoflT7%  t^  "^  ^«*^^«^'  ^«t^èea 
•     Albans  bank,  in  L  towS tt  Alhl""^' J  ^''^f  ^«^  <«  ^^'  St. 

of  paying  a  nito  thatSVue  b  thi  brkfX/.'  5'.*^'  ^'^^^^ 
,    the  amount  of  the  note  was  fiw»  ^f.n?^  ^  î?*'  ^^^  ^y  <^"'-  fi™  r 

thpee  hundred  and  idnet?thrp!  ^  îi"^-  ^*'"^-    ^  ^^d  with  me 

United  States,  Sara^trduf  ï^th"  C'd*  fT^.^','^- 

■    {he  payment  of  the  différence     \Vh2  t      ™*î<^n*»  ^  complète 

I  found  it  closed.    I  knS  at  th!  /  ^""^."^  **  *^«  ^^^^  ^oor, 

opened  by  a  person  whô  wa^  AV^^  '^'^'"  ^""^  '^  ^««  immediatelj^ 

who  had  onened  it,  and^wt  had? t-'^î'^^.  ^^  ^^'^  «^«"^  P«"on 

the  other  Ud  he  Tau  J^me  bv  t^«'i!^1/  '"^^'^«^'  ^"^  with 

.  alonç  to  the  desk,  and  Se  The  remtfe  l'^f  îf'  ^^  P»^^^'*  °»« 

waa  In  the  other  mm     Z  t  L       ^  ^^f  ^''^  ^*°  «^  *^e  bank 

jnother  3tmnger,Xhad^:i^:ro W^^^^^  '  ^  -*  '>y 

for  the  payment  of  the  nnt^  i  „„  •  j  •  "'^  ^*°<^-  The  monev 
thia  latter-^strînger  aeein^  iZ^"^-J\''y.J'^  h^<?'  and  upoj 
Beforehe  tookftfMr  Son^a  t-f"'*^  ^  ''^^.  *^^«  that  mon^. 
and  jvho  wasinana^oinfnfrl'm  J^^^^^  ^«  *^î«  '"«^tteî. 

had  better  give  it  un  "  i^Swf  .'.1     '^^^^^  ^^^  ^  «aught;  yoa  • 

thereupon  aaid"S.:uh  ;\TdoYel^^^^^^^^^^^^      ?."%^^*^«  P^^ 
strangersin  the  bank  ♦»,«  «        t         -^  ®"v  noticed  two  armed 

the  oSe  whî  met  me tt  Se  Zk  T^^P^^f?  ^^e  door  for  me,  and 
I-gave  to  one  of  the  Ltd  tn  tîfo  mT'"'T\^.^^*^«««'«'"»''J^«> 
ing  to  ihree  hundred^ÏÏ  nineÏ^ir^/„^^  ^î'^  °»«'  *"»«"«*- 
money  l«cau8o  I  waa  put  in  frnr  ni  ,v"?f-;  ^  ««^«  'IP  ^^ 
The  ma/who  stood  at  Se  desk  anfS^  1^1^  '"^"'^  *"  ^«  «9-  "  " 
before  taking  it,  prelted  a  r^it^^mt^^K^^^^^  ^'•^'"  •"«- 
my  person.  I  do  not  recollLvZé  i  *^™S^bich  almost  touched 
out;*!  b«lieyedhrwLld£r     ^'*''^^^^  bram^ 

Mr.Bishopiiie!  rd  ftom  ïf  S^'^T'-  ^^  ^"^  the-^eS 
Tbi8man,Sr^h;sSdh^  w^d^k^''  ^^^  P^«««°*«^  ^'^^^ 
«ndér  ariest,  and  ïat  thev  wL  p    r^  '"'"'^'  ^^  ***  ^  ^as      " 
askedthomiftheydWni.?»     r  po^fe'J^rate  soWièrs.    I  then 

private  properfy.    Thi  mon^  Sfi?     *"^  ^*'®"^'^  «'«P^cteS 


^ .  1      -^-did-aot,  aad  a«j 


.^1! 


il 


t  t| 


il  ■  .f! 


». 

1  ifl 

m 

a 

T            ^ 

r# 

bB 

£é'H 

• 

1 

« 

■ 

'  b9 

.r: 

^B 

''(-' 

i^ii 

■f 


"■is'*!,»tWio^jto 


'(4v>'4ié^|^ 


ii'vma 


mf^^^^Fwy^^^^w^^^^^^^^s^^r^^^ 


|y 


■1^ 


140' 


Wd  m  civW  clothes.  -I  did  not  tell  thêm  that  the  money  I 

K.^^'^^nùtipnvAte  property.    After  takbg  thîs  money  from  me  one 

of  the^ed  mensm  kept his.hand  on%j  shoulder^  ISi  ^ed  m^ 

mto  the  Director's  room,  tW  ifl.he.shôved  me  in     This  armel 

ma^thB,t  if  I  att^mpted  to  escàpe,  or  giyeany  ÏÏ^he 

»    woulS^dïrtsrQe.    1^  wa«  the  man  that  took  S/Sy  Sme 

"    l^^^^^^'^'^'f^  bWmybrainapnt^incoU^ence' 
of  this  threat,  I  remwned  quiet.    I  was  kept  in  thia  stSe  for 

'  "  t^Mr.  w  iT  ""^  ^-P^^'t  -^  y*"^S  «^«^J^»  *>^  teleghiph  opemtor 

^f.Mr  Weela'  came  m.    He  had  alao  a  package  of  monefin^ 

•^and,  he  made  the  remwk  fliat  it  belongeito  Mn  Weéks,  Ld  ttS 

"  IS^  BtMjugjer,  or  »rmed  man  tlm^took  my  moûey,  took  bis  money 

S'  fW  V^T^f  *°.7!  ?f"*^'î'  *^  set  away,  and  the  amedmÉS 
^d  that  he  should  not  let  the  telegraph  operator  go,  and  that  if  ho 

l^«t?^  Sr  ^  *^°  S^^P^  office,  hewould  have  shoTwm  on 

room,  gf»ringf^,to  understand  that  if  he  did  not,'^ey  would  shoot 
'  h^  '  *"^  iW  ««'^««^'^««ce,  remained.    Tbey  r&UXt  tW 

SjSr''T;i,*^n*^*  ^î»7  intended  t»  bum  the  dépôt,  pubh^ 
-  fir.frf  '  *fu^  the  Governor^a  houso.     Soon  after,  I  héard  ahots" 

from  the  bank  of  the  sajd  armed  mon,  one  of  them  soon  afCwent 

Z  ï  1     A     r  n  ^?  **»«  V°t  o«t-    Mr.  Bishop  then  went  out 
and  I  soon  after  foUowed,  and  then  saw  Vpariy  of  ho«emen  riding 
north.    Tho  pnsonor,  who  gives  his  n^me  as  Squire  Turner  Teavis 
I  recognizeis  one  of  the  two  armed  men  who  tâ,k  my  money  ble 

^tiï!ï^  aforesaid,  unon  the  nmeteenth  day  of  October  last  paat. 

Oross^amtned  on  behalf  of  the  Confederate  States. -I  & 

S  If"  vi"  TÇ'  'r¥,.**  ^"^  Y<>^^  Herald,  pubUshed  in  the 

''  N^l  vT    n"^®"  Ti?.  Pr«?ïa"ation8  are  publishSTn  the  city  of 
New  York      Oeneral  Dut  is  in  command  of  the  department  of  the 

tion  publMhed  m  Ae  said  paper  préviens  to  this  date,  and  f  présume 

f%l  P^.ï^t»on.  »n  t1.e  number  of  the  .New  York  rferald  of 

the  fifteenth  matant;  is  a  copy  of  the  proclamation  in  question.    S 

.  appears  m  the  first  page  of  the  said  paper,  and  is  stateî  the  SnenJ 

pq>er  în  «fie  UnSeî  States.    It  is  the  pra^lhere  tTi^S 
proclamations  and  orders.  in  the  leading  papers.    Bemg  MkÏÏ 

r 


1/ 


,.,'A 


:Lm£& 


'^^^ii' 


l:' 


<  I . 


monej  as  aforeswd.    f  K  4*f  '^' '^  ^  ^"^  that  took  my 
othe^  banks  at  the  town  nf  St  A*,^*  "^^l  ^«^  taken  oui  of  thi 

acting  linder  Gênera  IX  i^d  &  7*""  ^«^«^ate  soldiers 

aoney  taken  f^ifi-afiCS^d  nVii^^^^     "''''**^  »™«t-    The 

tod  4  rert  of  JitSri^d  n*if^K*"î  ^*-  Gitans  bank  bilb! 

^^k    i-     **  .***^®''  '''*»'»;  and  furthei-  T  3r 

^  be  forôgoing  depositioi  havinTienlS 

Eworntobefo^«e,iXnt^,,  ^  ^AMUEÊ  BRECK.       . 

(Signed),  J.  Smith,  J.S^.  .     ' 

pf  vt^if^i^Sf  ISr^1«*-  A^^«^  -  the  State 
jn  the  çi^  (îf  Montre^a^  uj^n  his  oS»!!"""^^^^  *'^'^'  «^"^  '^ow 
town  of  St.  Albans  afoi^s^S  on  the^M^'^T^  ^^  ^*^g  ^^  the 
î«tpa«t.     Onthatdarîwen?otrl'^S!*'!?*^^^J^°f^^^  ^ 

betweenthreeandfour^thra^^i      **', '^K^treet  in  St.  Albana. 
on  horseback  in  Sie^r^et     I^w^Toi^^^ 
the  St.  Albans  bank,  w&  is  ZTm^    ^"^  """^  ^^j;ods  above 
directly  after  I  went  oS  oi^  „?  i^'^  '^''>  °^  *^«  iid'-tpjm  : 
genU«m«  I  was  conveSniA  tZaTtÛ  T °  ^«"*  "P  ^* 
fi«m  him  his  hat,  sayW  lhTw?I  J^f*""***"!  *°^  deideS. 
«mrades.    Mr.  NettffiheStatiTil  ^««' ^ft»*-  one  of  his  ^  . 
«lat  he  could  not  lose  hia  ha^  hïïiên  .nS^*"^  then  rem^rked,       ' 
Jt,^aymgat  tibe  same  timekarhe^^Tfe?*^l^««^^^         - 
refused,  and  the  same  time  this  ma^  S  h       k    }^  ^^^"S'»  ^^  ^e 
vett,  and  cocked  them  Z  «LS  îu  ^•'"«^«''^  <lww  two  rêvol-      • 
Nettleton  put  his  hwS'ulKliî-^'*  ^"""^  **  ^^  Nettleton  ;  ^d 
of  d«wing^  fiTaZ;  ^Ihis    J^r»*^*  ««  ,^  ^it^  the  int^nSn 
know  if  he  had  anfaAns  aS  i?®  "**?  ""^  horseback  wislied  to 

lue  coat,  inm^ediîSyXî^ni^irf  ^'AT^ '^^  ^ 
the  man  that  was  my^or7fh^J'^'^^  ^^  '  -A*  *»^  tdme 


>-i 


>?:!' 


a  ciy  for  hein  rï^lrfk*^^  F™"'    4^  this  tfine 


banks;  theaetw^  .en  ij^elfS^^^^^^^^ 


/'fl 


:<> 


ff; 


..  ■<" 


'li 


'  l'i 


•  / 


'  l'-i 


«<.  .» 


4        . 


f;    .' 


142 


Sri^'In'"''  ?V^/  î^^°l^¥    At  thetimethe  second man rode 

an  irfult     AÉ  this  the  man  tl^at  firet  rode  up,  poinfced  two  «ï 
volvers  at  me  i^d  wished  to  know  if  I  had  aïy  aS  abouT^r 

,    I 'emarked  thai  I  hoped  he  would  not.  shoot  a^  unprotectedSn 
2fnT.™^r*.*^  ''r°'"  ^"^  ^^^^I^»"  unannJd.^  AfterS 

t-Z  — r  °^'  f  ^,^  ««^«r  ^as  given  from  soL  oTof  the  m^^ 
to  feU  m  Jine,  whioh  thév  did  as  welï  as  they  could,  and  heÏÏÎ 

^^rafewotS";^^^^^  Sg 

mm  a  tew  others.    I  saw  Captab  Conger  withà  gun  wîii<.rïf 

^  ^PK\««/ t'ying  to  fire  at  them,  Sut  the  gun  Sd  not  1  off 
Thèse  thût.had  fonned  in  line.and  headed  down  tle  streetllf U5 
^  aT  'l  llr^l'^'^J^^h  at  saià  Captain  CongI^^d  Ws  cid^^ 
About  th,8  time  there  appeared  to^be  one  of  the  robC  who  tS 
not  mounted  ;  he  cal  ed  upon  the  Captain,  as  I  supposerto  furdsï 

of  Puller/s  hvenr  stables,  and  demanded  Mr.  FuL'a  sadff  îo  2 
déwp  a  horse  that  had  just  been  rode  into  town  by  a  Mr;|m?Éh 
and  was  then  stendmg  m  fmnt  of  the  Tivery  stebW    Thf  ma«: 

norse,  toid  him  that  if  he  did  not  comply  he  would  shoot  1.5m 
ïteK^^/^f-'î^^'^'H*^^  horsedowc.  ^6.i8mÏÏadarevofe 
«rh.8  hand  which  w^  cocked,  and  which  he  prpsented  at  the  s^ddler 
The  armed  man  rode  by  the  aide  of  thesaid  saddler  kee^nTtt; 
revolver  pointed  at  him  inost  of  ihe  time  unThe  'cam^f aSv 
op^s,te  to  where  I  wa.  standing,  and  where  the  mal  L  wlft  o^î 

the  party     At  this  time  there  was  an  order  given  by  some  onTS 
the  armed  party  to  throw  Ôreek  fire  upon  a  buUding  opZite 
where  I  vas  «tanding;  by  this  time  the  hSies  became  m^^ 
rf)le  from  fnght  proba%,  and  the  armed  party  fired  sev^^ffa  " 
at  citizens  m  différent  directions.    Some  of  the'^shots  sJkwTr? 

sTfe'IÏTnmT.'^^^^;  T  ^*TÏ  *«  ^«^nerof  the  sto^Œ 
suc  feet  from  where  I  stood,  and  I  saw  the.  baU  which  wm 
picked  up  by  a  gentleman  standing  near;  they  theh  rode  ouUf 
towB  irregularhr,  and  that  is  the  I^t  I  saw  of  them     S  ImSà 

tC  "Wr-    t  ^ V^*Ï*S  ^^  ««"««^  fr°«  the  time  I  firs'Hîw 
them  untd  thôy  rode  off  ;  they  were  ail  dressed  in  citi^ens'  cTothw 
and  I  saw  nothmg  about  them  to  indicate  .that  they  wer^  soSeM 
ne  pnsoners,  Beimett  H.  Young,  and  Charles  Ke  Swtti 

M  ^at  I  hâve  rel^ed  took  vfTS^Z^^^^^ 
St.  Albans  aforesaid,  and  in  the  immédiate  vioinily  of  the  baX. 


■sÊmm-. 


■■  Ai 


"%.. 


!1^?"--':;;  ,  *•" 


'  .-■„  i:  i-",,  ■- 


143  ; 

.      ..Bfainheard's  Btore?  T^e^l    *,'  «rder  given  to  do  so  on  Mi-. 
WÏen  Captain  ConJ  cime  nnl^îî^î/*'^^?  ^'^"*^'^e  store. 

to  eoUect  in  the  street     ThL!  «      u    rlf  *''*'''®°«  ^«''e  beginninî 
m  St.  Albans     At  that- til  fT'  ^^^"V^'"^^  t^ousand  inhabitante 
.  townabout  halfli  hoî^  ^b,  tw/^^^  P*^*^  had  :been  in  the 
r  ■  habitante  "had  XS  but&i  «^AT/r^^'  "^  *^«  '"-  " 

as  précautions  were  tafcen  to  Wvf!f  I-    'î  ^\  ê^a*®'  P^^ion, 
:      At  that  time  they  had  s^JS  Kl       •***'?'  }^  **  armed  partj 

•  ^f^.,  and^diS^mÎ! St  h  J  ïal  a^Sr^*"?  "1^^  ^^  ' 
^t  any  one  waa  shot  bv  the  vollevs  T  Zï  «  !»  Idonotknow  ^ 
there  was  a  soldier  of  the  TTnîLI  hW    ^^  ^r®<*-    ^  know.that  * 

(Signed)     •         J.  StoH,  J.8.C.     "~     V      - 

<>fore«aid,  andWn3S?ti^'„Ç^'"^?  «•  mch  in  Vement 
evidenoe  in  L,  S»  '^''•'  "">  iare  heard  aU  th« 

Jo«ph  T.  BoltemZthfanfoeo^TE^  ^^"ft.^r'"  |wk. 


V. 


n: .  *l 


.'-^ 


Ai 


<>  • 


" 


•« 


"/ ,  >»  ^^;.  .■;|     ''■      -^*     • 


■  ï-iWi  \i...??M(^" 


*.  „ 


{!■^^P^s<|^i^^l'cp|lfnpp^PfP|IIP|; 


y["r 


and  recognized  by  the  laws  of  the  toid'  State  of  Vermont  in  force 
on  the  said  nineteo9th  day  of  October  laat  ? 

Jinewer—JI):^  did,  and  do  now. 

yuestion.-Accor^g  to  the  laws  of  the  said  State  of  Vertnont 
m  force  on  the  said  nineteenth  âay  of  October  la«t,  w»«ld  the  fe^te 

frnT^;%t  ^'-^  '^'^^r  ^""S  ^«°^«  the^chaî^f  of TobbTi? 
against  ail  of  the  prisoners  above  «amed  ?  ^ 

„/"Tc;T?  ''^'*^^'.  J'^®  volume  now  produced  contains  the 
gênerai  Statotes  now  m  force  in  the  said  Saté  of  Vennor^S 
which  were  a^o  m  forceon  the  said  nineteenth  day  of  October  C 
I  am  acquajnted  with  the  seal  of  the  said  State,  and  with  the^gl 
natures  of  the  Govemor  and  Secretary  of  the  said  State  and  I 
déclare  that  the  seal  affixed  to  the  certificate  written  on  the  leaf 
immediately  after  the  page  seven  hundred  and  ninety,  and  between 
the  Acts  and  the  index,  ,s  t^e  seal  of  the  said  State  and  the  s£ 

S'^aid  Si.? ''^7i"^'^''' '' "^^  «•S°^*"'«  of  theGoveior?f 
the  said  State,  and  tiie  signature,  "  G.  W.  Bailey.iun  »  S  the 
signature  of  the  Secretary  of  State  of  the  said  State  of^erlnî 
Cros8-examned  on  behalf  of  the  Confederate  States.-The  of- 
fence  committed  by  the  nri^ners  would  be  cognizable  by  the  Courts 
of  the  State  Courts  of  the  State  of  Vermont.  ïhe  U^ted  StaS 
Courts  for  the  D^trict  of  Vermont  would  hâve  no  prim^y  jurisdS 
taon  over  this  offence  The  State  of  Vermont,  there^forrî^ 
th.  T?  P"T^  J""^^^*'^'^  of  the  crime  of  robb^ry  comiïïS^d  b    , 

IniM^^'^t^r^"^*^*^'*-  T«^a«'Califomia;£nsas,lSr 
and  Mmnesote,  hâve  been  admitted  into  the  Union  sS  the Ta^ 
eighteen  hundred  and  forty-two.  I  know  that  an  Act  of  ConS 
Z  ^i  '"^  the  seventeenth  of  July,  eighteen  hmidred  and  sK 
two,  chapter  one  hundred  and  ninety-five,  entitied  an  Act  te  sul 
press  msurrection,  and  to  punish  trea'son  md  rébellion,  toseizeS 

shot't  itffTht  '^  ''^^'^  "^^  ^''  ''^'^  purpciesSTct 
thr.»Iln?.  '  ^''^  aiiyperson  engaged  in-wïr,  ^committing 
the  cnme.of  treason  against  the  said  United  States  is  UabirtS 
imprisonment  and  fine,  and  the  property  of  that  inSi^  tuMe 
te  coi^cation  tosatisfy  the  fine,both  real  and  personaWrtÏ  i 
refer  for  explanation  of  the  said  Act  to  the  co  Jy  of  the  Acîprinted 
"»  VJawrenceWheaton  on  International  uï,'' pages  600  601 
and  602,  which  I  hâve  no  doubt  is  a  true  cbpy     ^^  '    ^^' 

ÇM.«fïon.— In  your  opinion,  should  a  (fetachment  of  United 
States  soldiers,  under  the  command  of  an  officer  in  your  armHo  ^ 
bke  acte  to  those  charged  against  the  nrisoners,  ;or^dTLr^ 
and  officers  bemg  then  m  Georgia,  woulâ  they  be  g\iilty  of  roSery^ 

(Objected  to  by  Mr.  Devlin.     Objection  overruled)  ^ 

ÏT^^'^^Tf^'^^^'  ^^'g'*  «  a  State  in  rebenîbnagfinst 
the  constituted  authorities  of  the  United  States.     War Tg^^q , 

4- 


^'  *I       k. 


*       ,.  .■•   (*■*! 


ff 


1 


146 

I  do  not  conBider  it  an  act  of  treason  St  «i^S^Jf!?  v""^^^" 
Quettion.-^Do  you  conaider  *!,«  /.Si  î  tje  btate  of  Vermont. 
the  other  parties,  K  Wh  of  |t  S'  °^  *ï^  P^'»^"'  "^d 
October  l^^è^lTe^r  L!  «  ?T',°''  thenineteenthof 
treason  agaiitTMledStetesl^  "^^  déclarations  together,  as 
(Objected  to  by  Mr.  DevKn.    bbjection  overruled  ^ 

he^iTiTttw  rui''&'''''î».«-o-t  to  .d'.d, 
<îoinfort  ?  ..  ^"^"^d  States,  giving  them  aid  and 

«pnaoïi.    I  un  aware  dut  Jade.  ÎI.iZ  V»""  "«"re  «irag  an 
Court  of  tte  UmM  S&^''fl"k"T^îM*''  *■- 


âlso.    I  bave  "see^  the"';k  cX  «£*p'^ï'^,f  8%>°»an  is    - 
published  bv  G  P  p7,tnr™    JJ^?  u    ^®  Rébellion  Kecord." 

Conrto  of  VeS  I  Wo^n  lita  S  8»™mah."  '  In  fte 
th.»  »,  «Tidoiw,  in  ind  S  SJZ»  "V^  «<'I»â^«l^eyidenoe  ; 
»ho  .1  One  «me  c««nd^d  rt^^  OrW  °l?L'''îl"'<î?'. 
V  «P-tation,  M,d  luiTe  »,i,  iim     Bfe  Sn^^'  ^^^  "^ 


fl|; 

■'  '*'  1 

!•• 

II 


-M 


SHfi. 


|.'<     I 
II' 
îti 


i  il 


i) 


V 


A-. 


„;*i'-. 


^feÂlii- 


Ml 


X^T- 


"^V 


146 

Aruwer. —Hav'mg  givei^upthe  money,under  the  circumstance», 
not  to  an  agent  of  the  bank,  he  would  be  liable  to  the  bank.     And 
further  I  say  not,  and  hâve  aigned,  the  foregoing  dépositions  hav- 
ing  been  taken  and  read  ici  the  présence  of  the  prisoners  ■ 
o         ...  (Signed)        EDWARD  A.  SOWLES. 

owom  to  before  me,  at  Montréal,  this  )    ^  ' , 

twenty-nlnth  day  of  December,  1864.  )  \^  i  "^ 

(Signed)     ^  J.  Smith, 

J.S.C. 
Mr.  Bethune. — This  is  our  last  witaess. 

Mr.  Kerr. — I  bave  a  poii^t  to  submit  as  to  the  jurisdiction  of  the 
Court.  But  as  I  was  not  aware  last  evening  that  the  counsel  for 
the  prosecution  would  hâve  finished  so  soon,  I  shall  be  ready  to- 
morrow  moming  with  my  argument  as  to  the  jurisdiction. 

1^  rr     ^     .      ^.  Friday,  30th  Decl,  1864. 

mr  Kerr  for  the  pnsoners^bmitted  :  \ 

1.  That  the»  Province  of  Canada  was  but  a  corporation  with 

powers  limited  and  defined  by  Imp.  Act,  3rd  and  4th  Vie,  cap.  35 

the  third  clause  of  whicl^  wàa  in  the  foUowing  terms.  ' 

Fropi  and  after  the  re-^on  of  the  said  two  Provinces,  there  shall 

be  withm  th$  Pi^ovince  of  Canada  one  Législative  Council  and  one 

Assembly,  to  be  severally  constituted  and  composed  in  the  manner 

hereinafter  prescribed,  which  shall  be  called  "The  Legishitive 

Council  and  Aperably  of  Canada  ;  "  and  within  the  Province  of 

Canada,  Her  Majesty  shall  hâve  pow«r,  by  and  with  the  advice 

and  consent  of  the  said  Législative  Cotincil  and  Assembly,  to  make 

laws  for  the  peace,  welfare  and  good  govemment  of  the  Province 

of  Canada,  such  laws  not  bemg  répugnant  to  this  Act,  or  to  such 

^rts  of  the  said  Act,  passçd  in  the  thirtv-firet  year  of  the  Reign  of 

His  said  late  Majesty,  as  are  not  hereby  repeaied,  or  to  any  Act 

of  Parliament  made  or  to  be  made,  and  not  hereby  repeaied,  whioh 

does  or  éhall,  by  express  enactment  or  by  necessary  intendment 

extend  to  the  Provinces  of  Upper  and  Lower  Canada,  or  to  either 

of  them,  or  to  the  Province  of  Canada,  and  that  ail  such  laws  being 

passed  by  the  said  Législative  Council  and  Assembly,  andassented 

|o  by  Her  Majestv,  or  assedted  to  in  Her  Majes^'s  name  by  the 

Goyemor  of  the  Province  of  Canada,  shall  be  valid  and  bindi^g  to 

aU  intenta  and  purposes  within  ûiQ  Province  of  Canada. 

2.  The  conditions  preoedeoi  then  to  the  validity  of  Provincial 

Statntes,  were  :  first,  uut  the^Bhould  be  for  the  peace,  welfuTand 

good  government  of  the  Pirovmce  ;  second,  that  they  should  not  be 

répugnant  foae  provisions  of  any  Imp.  Act  tlien  in  force-,  or  wWch 

Aeréafter  migbMS»^pM8ed.    — ^"^  -—-—^ — nT- — 


8.  By  the  lOth  article  of  the  treaty  of  1842,  between  G^eat 


r 


-Ti 


É^^àdf^ix&^^^-i^Ài-L'fiJ^^ï   é-.  '^   V-      ,'i^^  ii^-^^a^y^ 


r^r      ^fr,r     -_*ir  .  -   î       **i 


^AsMf 


J" 


Y      a<  'k^         K4£^.>U.,^ÙI 


147  ■        ■      , 

Britain  and  the  UnîtAd  Rfo*      -i 
crumnals  in  certain  casJ^eWd  b^;^ J'"'^^^  extradition  of 

M^^teg  respectivelj.         •'"™*'*'°" '"  *^«"*  J-dges  and  thfeir 

Ma^tSÇs  in^Cànlda,  were  thetffi  '  *°?  *>  ^'^'^«««  ««^  other 
«««ng  wterants  to  appS  ï  i^S'^î  ^*  *«  Po^«r  rf 
the  (forerftor  Geneii'g  ÎX^iîS'"'*^^^^^  »Po°  the  issue  of 
sition  for  extraditionïïd  b^Tîïadf  ^^  «^ormatio^.that  a  reqdl 

f^^o7Z.t.t\Xl::^^^^^    7ih  Vie,  cap  76,  n. 

Wl  Législature  of  Jny  British  coïr^'^  thereafter  made  bj  the 
VMion  shaU  be  made  for  ct^J^i^V''  ^^"^^^  abroad,V 
♦olony  or  possession,  the  o^S^^e  ZTaI^^!^'  within'lb 

Iwl'^^r.  "°^*°»«°t  »  lienlJîeorlt  W  ^  *ï.'  substitution 
with  thé  advice  of  Her  Eri^r!««   i  z-^"  ^®'  Mdjesty  mieht 

Council  it  seems  meet  bïï^YtheS  ^'^  *'.^*'  Maj^in 

^  colonj  or  po8sefl8ion,!tf^^î;£^^  '^^""^  ^*hin  any  Lb 

hament,  so  loniri^mwh  »Eh?/^®  ^'^  ^^'^  <>f  the  Imp.  Par- 

the^re,  ^d  no  ifnteî.»     ?'^^«*'*«*«^^  «nactment  contiûues  ij  fj^; 

Wt  o;  SaTSeTL^  VXtM  *^  ^~^'^«i»ï  Parlia- 
rS?  "^  *^,^  «^<»  ôth  SectionTf  Se  eVAiW'"^""  *"^  I«^«r 
»  tte  ewly  part  of  1850;  Her  MjSest^h  Jî^^^:'  ^^P'  ^^  ''  »«* 
pended  the  opération  of  the  iL  Kt^/^  't'  "^  ^""«^^  8"«- 
8aidl2th  Vie,  cap.  19,  shoK'in  îoU^  .a"^^'.  '^  ''^'»«  ««  th^ 

8.  By  the  12th  Vie.    cao  19  An         '^^^  "^  ^®«g«'- 
™jntpreceding  the  CVa  VfrîanTbTJ^  5^'  *^^  ^<>^^™or'» 
waé  done  away  with,  and  any  bne  ofA-  ÎV-'"^«®r  û^giatrate, 
Peace  throuZ)ut  the  IwSje  t«f  f?!.,'^'*î*«^'  ^'  '^«"^s  of  <£ 
rant  to  exai^e  witneieJ^d  ^Xf'  """"^T?^^  *<»  i«ue  such  y^. 

J»ati«;beingmade,ïe":ol'a:^^^^^^ 

«Wffolly  preserved.  ^      ^'^  "**  *«»«<y  being  therein 

■  9.  By  the  6th  clause  of  the  IStK  v:-    \r^i 
2«JP«KKl  of  fi^e  olanaes  only)  U  ts  ^^^^  being 

Mtll  continue  in  fem»  Hn»î««  a      ^  provided  that  «  thig  aÂ 

«  c«^  fer  «»,  i^.  ^^  six^Jtr^'^ 


V 


fK 


¥f 


-«^ 


■■.,       148       ,     -.    -  /■  .    '- 

WM  sttipended  in  thd  Promoe,  so  long  as  thêt'^iactment  (thç  12tft 
Vk}.,  oÀp.  19)',reaiainedinforce  and  no  l<Niger — thofifth, clause  of 
ibe'Stetate  12tii  Viçt^niast  also  be  regardai  as  a  kmd  of  pltdge 
^0(2  the  dunktiijn  of  the  aot  itself. 

'  11.  By  the.  PÀmiwiil  |A.ot,  2S^Vic.,  cap.  29;  Ci  iriii  uo^ 
vided  ^'  that  fircHD  the  daj  meni3on«â]&L  the  proolamaâon  prorMaé 
for  hj  section  fbor,  ail  the  enaetménts  m  the  several  Axsts  and  palM 
of  Acts  in  sttoh  amended  Schedole  A  mentioned  as  repealed,  (dtaÙ 
stand  and  be.repealed  ;  by  ihe  9tb  Section,  ii  was  provided  **  thaï 
if  the  pjTOTisions  of  the  Consolidated  Statutes  are  not  the  same  as 
those  of  the  repealed  acts  guoad  iransaotions  after  those  doosoli- 
dated  Statates  oome  into  effeot,  the  provisions  of  tiie  CoiuKdidiited 
Statute  shall  prêvail."  ,         ' 

12.  In  Sohedule  A  (Con.,Stat.  of. Canada^  p.  1208)  appears  as 
repealed  12th  Vio.fisap.  19. 

18.  The  Govemor  uenenJ  issued  his  proclamairân  on  the  9th 
No7.,  1859,  fizmg  the  ôih  of  Dec.  as  the  day  on  whioh  &e  Conse- 
lidt^d  Statutes  of  Canada,  shoold  corne  into  force  under  the  4tii 
Section,  22nd  Vie,  cap.  29. 

14.  The  22na  Vie,  cap.  89,  (CànsôMated  Statates  of  C^mada) 
^fts  a,ïe-enacta)ent  of  the  12th  Vie,  ea«>.  19.- 

16.  By  the  Pnfvinoial  Statnte,  24th  Vic.,  cap.  6,  tiie  first  tlùnse 
clauses  of  thé  22nd  Vie.,  cap.  89,  were  repealed— and  tfaree  otiwr 
clauses  8ubstitute4*4hereïor.  By  the  24tii  Vie,  jarisdiction  in  cases 
of  exiaraditî(A  wtë  taken  away  from  tilie  Justices  of  the  Beaôè' 
thronghout  the  Province,  and  vMted  in  certain  other  officials^^lKe 
words  iun  the  first^tion  of  the  2^d  VIq.,  cap.  89,  "  witii  haviag 
«looùmtied  ivithin  the  jurisdiction  of  the  United  States  of  America^ 
or  of  any  pf  «ich  States,  any  of  thç  «rimes,  &c.,"  were  changed  to 
"jrith  having  coiamitted  vithin  the  jurisdictiim  of  the  Vtvâîà 
States  "of  Anienca,iiny  pf  the  i»unes,&o.,'Va«d  other  changes 
were  made  relating  to  tiie  suffioienoy  of  the  évidence. 

16.  No  order  of  Her  M^jesty  ru  Counoil  suspeading  the  opènir 
tion  of  the  lB)p.  Aot  duiiog  the  ccoitinuanoe  in  force  of  tîie  24tàx 
Yic,  cap.  6,  wA9  ever  made. 

17.  By  the'fepealmg  clause  of  the  j24th  Vie.',  oap.  6,  three  of  the 
five  clauses  compoaing  the  22nd  Vie.,  cap.  89,  (we  re^enaotonMil; 
of  the  12!lih  Yio.,  cap.  19,)  were  repeajea,  leavîng  in  fact  but  one 
olAuse,which  was  siimlar  to  one  of  the  clausesof  the  Imp.  Aot|ilMi 
and  Tti)  YkKi  <iap.  76,  «>  thàt  the  enacl^ent  substitnted  (the.w^^to 
of  tiie  Act  12th  Vie.,  cap.  19)  had  o««Bed  to  be  in  fomït^.aQd  tlke 
Imp»  Apt  6th  and  7th  Yio.,  cap.  76,  under  it»own  im>vision0;«Dd 

^Hfiig-  >^ifist^<LJ)rd«i  i4  Gûunpil^  ontha  «si^ Jyr^Jie  jGbff^iÛi^ 
6«net«l  to  oi»^  â4th  Yi0«»  «*!>•  ^4  roràied. 

Mr.jSdk»ti0  c<«t4endéd  tliatf  our  legislatinre  had  fiiU  power  io 
legislate  upon  this  subject  irrespective  of  any  treaty  or  impérial 


.j^y^ 


£^K/èr"<*«\  t^S^^v 


^^k 


:/ 


•»¥ 


fcr  the  M31CA  «Iifcïï  '®^''**«'e  8h«U  hâve  po^r  to  iaak«  iam 

«•"«Ml  bï  the  Crown  3  rt^ÔLlS?    i  "  "f^,?"  »"  ««««"les 

'  «Sied  atnfinS^n  of  Ito  &"  Thi,:  A^b  r f  *^  î^^" 
powtroo  this  sabiect  did  n^JlfeT  f«  Ao*,  m  refermg  to  onr 

STeû  ™,  bat  to  aCeï^iU^^^xS^^^  '^  .bei«|thereby 

Impérial  Aot.    Th^wimiinff  o/#W  a£  î  *«.IT'"«  '*^*®  «id 


*  '•  îf 


'.•îi& 


^-3 


/ 


7PPP»"^R? 


?  160 

other  nation,  and  ^t  ifc  iga  nùùMnry  fer  fche  Crown,  in  good  faith. 
to^ke  caw  that  sTour  obligatiobs  wew  oarried  out  fait&uUy.  'If 
the  législature  of  thia  colony  did  not  legislate  Buffioiently  ïn  the 
matter,  the  Impérial  Parhament  could  aîwaya  step  in  and  sapplr 
ail  deficiency  80  as  to  answer  fuUy  the  purposes  of  àe  trcatv.   fhe 
Impérial  Législature  reserved  to  itself  the  right  to  see  the  èolonial 
enactment  before  it  would  suspend  its  own  enactment.     There  was 
nothing  illégal  or  improper  in  the  Provmcial  and  Impérial  enaot- 
mente  going  on  together;  on  the  contraiy,  they  contemplated  suoh 
a  State  of  thmgs.     We  passed  an  a«t  in  1849,  but  it  did  Sot  require 
any  sanction  from  Her  Mj^esty  in  order  to  makelt  kw.    As  the 
act  0^ated  a  machinery  of  our  own,  for  the  sake  of  convenience. 
our  egiskture  left  it  to  Her  Majesty  to  indicate  a  day  upon  whioh 
this  Itreaty  should  corne  in  force,  in  order  that  if  she  thought  pro- 
.    P«rto  suspend  the  eperation'ûf .  the  Impérial  Statute^  thei^^d 
be  1^0  confusion,  and  that  we  should  alway8,orin  the  meantime 
bave  some   law  m  opération.    What  was  the   language  of  Her 
Mjyesty,  as  appeared  by  the  Canada  Gazette?    «By  virtue  of 
the  autiionty  vested  in  me  by  the  Provincial  Act'"^— the  act 
of  1849  passed  by  ouiMegislature.      This  was  not  surely  the 
authonty  of  a  mère  Corporation.    Her' Majesty's  power  of  sus- 
pension existed  as  long  only  as  our  statuto  existed.  As  to  the  argu- 
^/?*  *^î,  *«  l'npenal  Act  revived  on  the  repeal  of  the  statuto 
ot  1849,  the  chuse  Mr.  Kerr  relied  on  was  the  6th  of  the  Act 
rj^pectmg  the  ConsoUdated  Statute  of  Canada,  22nd  Vie,  chapter 
k-  u  .u   ^'J?"^®.  P«>7»<}«d  that  on  and  after  such  day  as  that  on 
which  the  Provmcial  Act  should  corne  into  force  and  effeot.  bv 
direction  of  the  Consolidated  Statutes  of  Canada,  etc.,  aU  the 
enactmenta  and  parts  of  enactments  mentioned  in  a  certain  sche- 
dule  shodd  stand  and  be  repoaled,  "save  only  as  heremafter 
provided       Nowi  as  to  the  argument  that  because  the  12th  Vie 
chapter  19,  was  embodied  in  that  schedule  that  it  was  therofore' 

pï^tî'*'^'**?!*^^^"  *®  ^''^  12**^  Vie,  was  embodied  in  ihe 
tonsohdated  Statutes,  a  new  statute  was  created,  it  is  to  be  noted. 

TkÏÏT'SS?  I^-  ^^l'.f^'  "  T!  ^"!,^  »"  hereinafter  provided." 
That  the  8th  wction  of  the  Consolidated  Statutes  enaoteS  that  said 
Conjwhdated  Stelutes  should  not  be  held  to  operate  as  a  new  law, 
^  but  as  a  consolidation,  and  as  declanitoiy  of  the  laws  contained 
in^  the  aota  so  repealed,  and  for  which  the  ConsoKdated  Aots 
wère  sflbsfatuted.»  Her  Mwesty  had  no  power  to  do  any  thing 
more  than  deal  with  the  whole  Act.  She  had  déclara  that 
the  Impérial  Act  would  be  suapended  as  long  as  the  Provincial 
continued  in  force,  and  no  longer.    But  was  it  to  be  argued 


^H»  wjt  wa«  iuûended  W  the  tegi^^ 
sequently  repealed.    The  Act  of  1Ô49  stUl  exists  oir  our  Statute 
Uook,  as  amended,  but  amended  in  a  verjr  small  particular.    Upon 


-  ^viifcSi,i.>â£*^rijl^<'--«#-^i."4ÎâiM 


n 


161 


jwer  given  under  that 
■  peaoe,  and  dving 
"Tstrates.  TÎere 
le  whole  Act  of 
place,  it  being 
^    ^'  HerMiyesty 
or  order  in  Council 


nearer  to  the  Impenîtt^LSuJL^^^-^î!^-^^^^^ 
law,  by  takjng  it  away  from  merejusêr 
it  m  heu  to  judges  of  aesmons,  and  ati  ' 

•     îïïo  v  !.  T  "'^'^*^  «*■  *«  Impérial  ^ 
o«n  •    !r  ^®"  r«pealed  by  us,  whidhi 
Btill  m  the  Statute  Book,  and  but  slighrr 

al  Her  MaiMlv'.  h™,).     Snr*.*'*'"""'^"'""'?  confirmation 
Th«  eraminaSon  of  Ho  mtaesws  in  tho  caso  of  «i«  rokb^rrof 


MTegtBet  haying  bei 


>en  preoedëi 
or  General. 


pri 

ri 


îndffl 


¥  1 


waroffitjit. 


o^lliii;"-!  "^^  -  ^  ^  ^^^^ 


t.->&  -^w'âî 


:;-4. 


i^ï-  :  •': 


/         (1 

k 

'    r' 

'■•1 

i;' 
'  '1 

1-.' 

:^.-j.": 

.:    ! 

■'-■■^, 


li 


162 

"  That  mj  warrant  havinc  been  ùsued  without  such  authoritv. 
i  ;y  al^t<»gf.ther  lUegal,  nuff,  and  void,  and  that  ihe  priwner  wàs 
entiued  to  his  discharge.'' 

"The  argBment  was,  that  thefe  waa  w  law  in  force  in  this 
rro^ce,  under  wbch  such  warrant  co^ifâ  legaUy  issue,  except 
the  Impenal  Statute  6th  and  7th  Victoria,  chanter  76  :  Là  that 
such  law  imperatively  required  the  authority  of  the  Govemor 
(mènerai,  before  such  arrest  could  be^madcj  and  that  without  such 
authonty  the  warrant  of  arrest  was  altogether  illégal. 

"  Jn  support  of  this  argument,  the  Counsel  for'  the  prisoner 
stated  several  propositions.  « 

Ist.  That  the  arrest  and  delivermg  up  of  persons  accused  of 
cnmes,  was  entarely  within  the  scope  of  Impérial  authority,  and 
beyond  the  junsdiction  of  a  Colonial  Executive, 

2nd,  That  there  was  no  provision  by  common  law,  or  by  the  ' 
comité  ofnation8,toeflFect  tins  object. 

8rd.  That  this  matter  is  regulated  entirely  by  treaty,  between 
mdependent  nations,  and  that  the  only  treaty  which  regulated  this 
Bubiect  between  Great  Britain  and  the  United  States  of  America, 
18  the  Ashburton  Treaty.  *  > 

Let  us  assume  then,  for  the  sake  of  argument,  that  the  three 
propositions  above  stated  are  true,  and  that  the  provisions  of  the 
Ashburton  Treaty  can  alone  settle  and  détermine  the  rights  of  both 
nations,  on  the  subject,— and  that  the  starting  point  in  the  settle- 
ment  of  the  question  is  that  treaty. 

The  Ashburton  Treaty  waa  finally  settled  by  the  two  Govem- 
mente  on  the  30th  day  of  October,  1842,  by  the  exchange  of 
Ratifications  at  London.  * 

By  the  tenth  article  of  this'  treatyjiit  was"  agreed,  «  That  Her 
Majesty  and  the  said  Umted  States  should,  upon  mutual  réquisitions 
by  them  or  their  mmisters,  offiCWB,  or  authorities,  respectivelv 
made,  dehver  up  to  justice  ail  persons,  who  being  charged  with  the 
cnme  of  murder,  or  assault  with  intent  to  commit  murder,  or  piracy 
or  arson  or  robberv,  or  for^ery,  or  the  uttenince  of  forged  paper,  ï 
comnutted  withm  thinjunsdiction  of  either  of  the  high  contracW 
parties,  should  seek  an  aaylum  or  should  be  found  ^ithm  the  terri- 
,  toiy  of  the  other." 

Provided  that  tht  should  only  be  donc,  upon  such  évidence  of 
cnminahty,  as,  according  to  the  laws  of  the  place  where  the  fum- 
tive,  or  ijerson  so  charged, should  be  found,  would  iustifAWs 
appréhension  and  commitméBt  for  trial,  if  the  crime  or  offencJLd 
been  there  confflutted.  And  tha»;*he  respective  Judges  and  other 
MMwtrates  of  the  two  Govemments  should  hâve  power,  jurisdiction 
^^jjthonty,  upon  complaint  made  under  oath,  t&iaaue  &  warrant  ^ 


for  the  appréhension  of  thf  fugitive  or  person  so  charged,  so  that 


'M 


158 

&o.,  &o.,  &o.  «  """ge  or  Magistrate  to  certify  the  same, 

General,  or  person  adminïrb^  S  '®*^  ''^  *^«  Govemor 

;ueh  an  »PpKation,h^Teen  iad?K^TT^''*^*°  signifythat 
dehverv  ofïuoh  offender  mdSlt  ^^'  *^f  ?^*«^  S*at«8  for  thç 

if  ?/^  w  «r^ïilXt'b^ei:*'  "  i;  ^r  ^«a, .,.» 

Legjglature*of  anvBritiah  colonv  J  ^^^^"'"^^  V  ^^^e  local 
shaU  be  made  for  cari^ïïbt  com^iiTT'"  ^^"'^^  P^oviaion 
or  possession  the  obS  o^f  A^  S'Î!  ;,f  ^^-T'ï^"  '"«^  ««lony 
to  a  treaty  between'Her  Maie-tr.n^  ?k  ^S*  '']  S"'  «^^"S  ««"ect 
7,  for  the  apprehensbn  o?celL  o^^  ®^^«  ^^«"«r- 

ofsomeotherenactmentbheuth^lf  Tr*^^^'  ^/ *^«  substitution 
jje  advice  of  Her  P^vycZ^^^^^^^ 

it  seeins  meet),  suspend  withb  an vl^h      ^'  ^""^''^^  '''  ^^'""«i' 

opération  of  the  saiî  Act  ofîh!7  ^^  .''^'^y  °'  possession  the 

suehsubstitutedenTcti^nLl?^  ^".P^"^  ParUameît,  so  long  a^ 

Under  a»e  auSitv  of  tlT  «Tf  "^  ^^''^  *^«'-"'^'  and  no  loniT 

ïrei^ty  between  fier  M^st  InH  îï  ir  -.^î  ^'*  rospecting  the 
for  the  aonrehension  ^?  surrelr  of  ^'"?-  ®^*^^.  ^^^"«^ca 
the  12th  Victoria,  chapter  'i9  ""^  '^'**'"  offenders,"  being 

of  t^tp^â  tïïtJtre  ttd  rbf  ^'  "«^'  ^^  P--- 
^e  in  practioe,  partdculLv  n  t ïi  ^"^nvenieht  in  this  Pro- 
authority  of  the  oivS^Sr^  w  ^^  "'^"^  "^"ired  the 
oould  be  n,ade  ;  and  iSeîeï  bw^^^^  *"^*  «f  l  criminal 

Aot,  it  is  enaot<^d  thatTb^^v  i5n  ^  '*'*'^"  °^  ^  I°»Perial 
»«Mle  bythe  local  le^riSuS  a  J^^^^^^ 
provision  shali  be  mad«  fnr  ««     •  ^^  ^^^^  ^^^^^7  or  possession 

tbewH»f,  Her  Ma  Jtv  milfT^S^.^  ,^^  "^^^  other^nactment  in  heu 

îf  fe  »..  »#-..  "T-.  J  «««HWWiui  tû^  wuwnt  of  Hct  t*rivy  Oouncii:^ 


tf to  Her  MiuV^v  in  SnnTnr**^ *"*"*"*  ^^  l'my  CounciT 

•wiig  as  sucù  substitutedenactment  éonî' 


\      i  S 


«  /ï 


154 


H% 


.  t 


'\i 


*!pT  S,/T®'  *^^  °°  ^nger  ;"  and  then  follows  the  ehactmeçts 
of  the  bUl  doing  away  with  the  necessity  of  the  Governor  Geaeral's 
warrant. 

'  ioS^^îh  ^*^  ^'f'"®  ^^  *^®  ^'^  ^^^  '*  ^*8  provided  that  the  Açt 
1  Jth  Victoria,  chapter  19,  shall  corne  into  force  upon  the  day  to  be 
appointed  for;;that  purpose,  in  any  proclamatîon  to  be  issued  by  the 
Uovemor  General,  or  person  administering  the  Government  of  the 
JProvince,  for  the  purpose  of  promulgating  any  order  of  Her 
Majeaty,  with  the  adviee  of  Her  Privy  CouncU,  suspending  the 
opratïon  of  the  Impérial  Act  hereinbefore  cited,  within  this  Pro- 
yince,  and  not  before  ;  and  thifl  Act  shall  continue  in  force  durinff 
the  continuation  of  the  lOth  Article  of  the  Province,  and  no  longer 

ooi  »rPT^*î^**^'*"  ^^  ^^^  ^y  *^«  Governor  General  on  the 
Jath^March,  1850,  and  was  published  in  the  Canada  Gazette  at 
that  time.  <  . 

'7*u''^r-®'**^®^  ^°  Council  reqiàired  by  the  fifth  clause  of  the  6th  and 
•   7th  Victoria,  Impérial  Act  was  paased,  and  the  opération  and 
'  :authonty  of  the  Impérial  Statute  6th  and  7th  Victoria  was  there- 
tore  suspended  within  the  Umits  of  this  Province,  and  the  12th 
Viotona/chapterl9,became  thé  lawvof  the  Province.  "^K  • 

,  y  ^eeffect,  therefore,  of  the  passing  of  the  12th  Victoria,  chap- 
ter ly,  was  to  oarry  out  more  comjdetely  the  stipulations  of  the 
treaty.    By  tRe  lOth  article  of  Ihat  treaty,  jurisdictiop  was  given 
to  the^udges  *nd  Mrfgistrates  mentioned  in  the  treaty.    By  the 
Impérial  Act  6th  ând  7th  Victoria,  it  waa  enacted  that  before 
thèse  Judges  or  Magistrates  could  act  under  the  lyeaty,  an  autho- 
rity  trom  the  Governor  General  waa  hecessary,— so  far  as  this  is 
conceraed  rt  was  a  departure  from  the  stipulation  of  the  lOth  Arti- 
cle,   buppose  the  6th  and  7th  Impérial  Slatute  had  enacted  that 
the  wwrant  by  a  Judge  orMagistrate  could  not  be  enforced,  except 
a  preyious  warrant  had  been  issued  under  the  hand  and  seal  of  the 
principal  Sécretary  of  State,  surely  it  would  not  be  contended  that 
such  an  enactment  would  not  hâve  been  contrary.to  the  provisions 
ot  the  treaty,  and  that  it, would  hâve  frustrated  the  very  object  of 
the  treaty  so  far  as  fhis  country  is  concemed  ;  what  possible  dif- 

>L  1^^  î'^  ?*  ™*'^®  ***  *^®  "*™«  ^^  *^«  Governor  General  is  irab- 
stituted  for  that  of  thefiecretary  of  State,  so  far  as  mère  convenience 
18  concemed  ?  The  Governor  Generar,^ho  résides  at  the  distano«i  of 
one  thouaand  miles  from  the  Western  extremity  of  the  Province, 
and  the  Sécretary  of  State  who  résides  in  England,  are  in  a  similar 
position  ;  and  the  preamble  of  the  12th  Victoria,  chapter  19,  déclares 
that  the  provisions  of  the  Impérial  Statute  hâve  been  found  inoon- 
vement  in  practice  in  the  country,  and  that  it  m  necessarv  to 
change  them.»^ ^ 


This  Act,  80  reasonable  in  that  partioular,  was  passed  without 
objection,  and  it  was  not  even  a  reserved  Act.    It  was 


\ 


i^ai|ê|^iUi^^^syg|;^<tj.iî^'^_, 


r  ■■■'■■ 


135 

(Impérial  Aol)™„ulJX5r b'.^  T   "j*!  **.""'  '*  ^«*»ri. 
«ry  for  that  piii^r  ifJ'.T"  "«(««'éd.  and*as  o„ly  aeoe». 

became  necessary.  »uuouncing  tùe    suspension  also 

matters  of  a  local  oature  feU  ™d„  T^  Parliament,  as  aï  „iher 
fto  Union  Act  iteelt  '  *'  JumdMtion  of  C&ada,  by 

The  mère  fact  that  the6tli  ftti^  7*1,  v:„i    • 

-tte;ÏÏ::r^frpSl:1ote7T^  a^ont,over  ail 
The  Act  of  mLd  7th  vS»  Parlement  of  Canada. 

relate/ to  tins  coun^^dtothe^^i"f°  Treaty,  so  far  as  it 
provisio*  of  the  t^ât?  ;f!!if     ^^^  f  ^""S^g  intoeffeot  the 

SherewlnoHX£t£auro^;*H%î'"l^  ^^  C'-W»- 
enacted  that  the  modrof  cw^"S        wt  "V^"**^^^'   ^^  ^ 

aua,orit^,ih7lôr.irfi.ïi  f"?  '°,'°  *«"  V  ImpSal 

Magistrates  of  the  two  counfr^  Tn  ^®''*®"  '»»  the  Judges  and 
authority  for  arresting  L'Hin"  Z'T^a  J^^sdictio^  «d 
the  said  treaty.  So  faT^  m^  •  ^  j-  !:  oflfenders  çaentioned  in 
absolutely  given  bv  the  t^atvT  iT^'^''''.  "  <^o°««™ed,  it  was 

Je  Impérial  oivomment  for  Ae  ^ok  nSn  ^^^f  ""^^  ^^ 

the  Wrial  authority  w««  supAme      °**'°^'*°^  «"*  ««tp«rpose. 

to  this  j„ri.dioti<«  .as  J^:K^^:ëlt\Ti;i^:  sï 


V 


|ijo  .  OT^f^r'^Hiv   j'-j'  —^^if^ 


il 


!S 


iJl 


•    156  . 

aT?  *^'  ,*^V2th  Victoria,  chapter  lï^Txp^rit  dolg'îw^ 
mih  thia  restriction  ;  and  so  far  as  fhe  snnenà9rhiS,aL  ^ 
ofpersonB  chargea  with  offence,  «pecialV^bted  ou^^b^^^ 
the  junsdiction  was  complète.    EveH  if  tibe  6th  «nd^fl  v;«!^* 
had  never  beea,  pa^d,  iJ  is  difficultUonceive  o^whaf  aS^ÎÎ 

«  rtïft  11'"  °^*  i'ecessary  for  me  to  pursue  this  point  any  forther 

3rd.  That  80  long  as  the  provisions  of  the  12th  Victoria  p},«n  i  q 
=ed*Î^Ktr*°'  °'  *'  '""  -"^  '^^^'^^ 
MMttl,  the  nght  lo  change  the  mode  of  procédure  oointed  nX^bî 

tte,£"f1hei,S!  T  "^^  ''^  Y' A  a  J'thr.SS 
raereior  ot  the  mode  of  procédure  pointed  outfev  the  1«fh  Vî/.f^t^„ 

&i''rtïct^^^^^^^^ 

ôT  Thï^lf  fk   ^^  ''r®''  ^*^®  '®<'«^^«<l  the  Royal  assent. 
sa«eti;nnAK   z^*'*"^®  ^^  procédure  can  be  chanied  w^A    he 
^  of  tîe  WW  •"^'."'^•'r'^'*  '^^  °«*  infringifg  thTprow! 

Arrh::^s^±,yr!?^;„t?:£'E^ 


..♦' 


'  tt  .'> 


157 
mation  to  thafc  effect.  •  "^  Victona,  and  a  Procla- 

tained  in  the  6th  and  7^  Vie Lî^^u°^  *^®  enactmento  con- 
and  7th  Victoria  maj  le  suïided  "  "^^^'''  '^  *^«  ^«^ 

^  8uspende<Cand  remiZd  fvJ^JS  T?™'  '^  thw  countr^  was 
enactoientJ  remiûn  ^ioL     ^^       "^  ^^""^  *"  «'^'''»  substftnted 

^'^  ÏSa^^;â^  ^^^l^  --  Bubstituted, 

thlicoloniriaw  necJ^Sr^l JthH  ^*^  ^,^  ^*.  ^^^oria 

^^hapeiud  Actm^\^^Tv'.^^^'^^^'^*^<>^^^ 
provisions  of  that  Act,  viz  •  to^Kr^^   f  carmng  ont  the 
burton  Treatv  ;  and^e^m^  A  Jf^  ^  complète  effect  the  A«h- 

to  the  Canadian  /ariiament  Z  dJtï^ff  ^  J^  \*^°^  ^^««»*«d 
tïie  United  St^i^BlSthTv^^.ti '^^^"^^^  ^^^ 

own  Acte.    Now  the  244h  Vi^îLil  »!    ^    *®  "«•**  *®  amencfite 


■;\ 


^ 


f.itt'l 


nm 


s 


•  ;|î 


35ai.^f  î*.T'i'\  wî 


sec«to«i  'of  6th  and'7tt)Vwt«i^' 
wbred  to  do,  and  the  eflfect 

r ration  of  the  6th  and.Tth 
énactments  existed  Jo'^e 
;,  and  by  this  law,  24th  Vîè|»ria, , 
.^  _^-  -  -  -,.  ,^  Council  -were  necessanri     îllv^a» . 
^  Ibe  treaty,  and  the  Order  in  Coupcil  wa^t^ly 
tibé  Ao^î  6th  and  7th  to  déclare  the  suspensiéÉ  of 
vÀ-ei    -jl  jA     :  ■     .      ■    '  t^  '^,   ■ 

,,„  Order  îtt  Cotmcil  had  been  made,  the  local  Act  wov 
nbt  hâve- hadl^e  lésa  force.  It  waa  the  enacting  clauses  whiv, 
deolared  the  slspension  of  the  Impérial  Statute,  so  soon  as  a  Oan 
iiT»n  A/>f  iBoa^naaa^A  and  froià  the  moment  the  '"*^^  iri.^.^v. 


no  w^  was  it  neoessary  tô  make  ojr  complète  a  law.     So  far  as 
re^EUrds  the  proclaiâation^  it  was  aoi  necessàry  to  m<d(e  the  law, 

,  but  merely  to  annoqnce  the.time  of  its  coming  intô  force,  as  it  was 

»  ptoirided  by  the  12th  Victoria,  chap.  19. 

?- :  Hpwevej",.  as  regards  the  24th  Victoria,  there  was  an  Order  in» 
Coimoi),  b^t  it^aô  Bolely  to  say  that  the  Act  24th  Victoria  waa 
}^^|ËH)peràtion,  ànd  to  intimatô  that  the  Act  would  not  be  dia- 
all<nréd  wit£în4^e  two  yeu^pointed  out  by  the  Union  Act.  No"w, 
would  Buch  an  Ordei^  in  Council  hâve  been  passed  if  it  had  been  for 
^^oment  considered,  li^at  the-mere  amendment  of  the  12th  Vic- 

"^^A,  ohap.  19,  had  or  cpuld  hâve  had  the  effeot  of  again  revivi 
and  bringing'into  force  the  6&  and  7th  Victoria.  '^ 

The  members  of  the  Council  liad  the  kw  officers  of  the 
whosé  attention  was  particularly  dra^  to  tïie  provisidr    ^ 
by  the  tiien  Secretary  oM^ie  for  tiie  Colonies,  the 
iHeweastie,  would  not  ^MHplon  into  such  a  blùnder 
her  Miyestv  to  leave  tifllWA  Victoria  to  its  ^ration 
the  6th  and  7(h  Iviotoria would  hav^^agam  oome^  fp; 

=="^iPhe  regrib  would -h«ye'faeeirtiiattwg^laïrë^rôli»:i , 

would  htW  existed,  rejpumant  and  antag«»ii8tio  in  ti|Mr 
which  would  hâve  nullinea  each  other,  and  the  ARhl»i>lon 

\ 


-j!- 


:^' 


159         . 

',  the  6ne  declaring  that  the  warrant  of  the  Govemor  General 

WW  necessary,  and  the  other  affirming  that  it  was  not,  and  botjii 

safisptàoned  by  the  same  authority,  viz.  :  the  Queen  in  Council.    It 

is^pÉpÔBsible  tq  suppose  that  if  such  had  been  the  effect  of  pàssing 

î|lî%24th  Victoria,  so  great  an  embarrassment  would  not  havebeen 

avraded. 

^^^!VThe  Ordet  in  Council,  insead  of  leaving  the  law  of  the  24th  Vic- 

«||ria  to  its  opération,  would  hâve  advised  her  Majesty  to  hâve  dis- 

'^àïl^wed  the  Act._ >< 

The  Impenal  anlh^rities  considered,  therefore,  that  the  enact- 
menta  of  the  24th  Victoria^  chap.  6,  fully  carried  out  the  provisions 
.ijpf  the  6th  and  7th  Victoria,  by  substitunng  the  enactments  required 
to  suspend  the  opération  of  the  6th  and  lû^  Victoria,  iri  thia  coun- 
try,  and  so  long  as  thèse  enactmeAts  existed,  the  24th  Victoria  was 
the  law  of  the  Tand.  The  argument  that  the  Act  of  the  12th  Vic- 
toria was  repealed  by  the  Consolidated  Statutes  of  Canada  cannot 
affect  the  question,  for  fhe  24th  Victoria  was  substituted  for  the 
12th  Victoria,  with  ail  necessary  enactments  required  by  i^e 
Impérial  Statute  6th  and  7th  Vicl^ria,  to  give  effect  to  the  law. 

The  very  terras  of  the  Order  in  Council  on  |J^subject  of  the 
24th  Victoria,  clearly  indicated  that  the  Impérial  authorities  con- 
sidered that  the  subject  was  exclusively  within  the  jurisdiction  of 
the  Canadian  Parliament  ;  for  ^the  words  used  in  the  Order  in 
Council,  viz  :-7-That  the  24th  Victoria  should  be  left  to  its  opéra- 
tion, simply  according  to  Dwarris,  pages  90-7-8-9,  that  it,  the  law, 
is  an  affair  of  an  ordinary  and  local  nature. 

If  a  second  Order  in  Cpun^  had  hsen  necessary,  according  to 
the  argument  of  the  Counsel  for  the  prisoner,  although  not  required 
by  the  act  itself,  such  a  pretensioa  must  clearly  rest  on  the  asser- 
tion tiiat  a  mère  Order  in  Council  and  a  proclamation  hâve  greater 
power  and  force  than  an  act  of  Parliament. 

The  24th  Victoria  having  receiyed  thé  royal  assent,  it  still  had 
notUie  force  of  law,  until  Her  Majesty  in  Council  had  approved  of 
it,  and  ratified  it.  An  assent  hadLjj^eady  been  given  by  the 
Qa^en  as  the  third^a^|^|^i^r  ^p^' Fj&riiament  of  Canada,  but 
^that  assent  mnat  Ppgam  affirmed  l^y^  ^H^rder  in  Council  before 
mo  Act  couldJtiecome  law.  If  so,ilihère"i8  not  a.smgté  act  m  the 
Stàiute  Book^icbhas  ther^o|Ce  of  law.  ^a 

.  The  proposiocn  therefore  is  thatof  P&rliapeiilcomposed'Of  th||; 
tfatree  great  powero  of  the  ^te^he  only  powers  whioh  eMA  Éàke 
a,  Iaii|^  hâve  assented  to  the  law— «till  the  ï^riyy  Coun«|l,  which 
has  no  le^s^tive  functions  whatever.  mustr.ai^rove  anaratify  it 

w^*v^^  w»^  .fB^w  liwii  t^mivinu  w  ^p>w^  y  1  — ™~ 

lUfl  argument  in  my  opinion  is  untenable  ;  lèei  12th  VJptt^ 
required  an  Order  inri||guncil  preoisely  because  the  6th  and  7th  «. 


«■A 


%:-,'■ 


■^^î.^ 


kj' 


1  »  Il 


il  'i 
% 

\ 


\r 


tîs. 


»      tÉt'" 


^ 


160 


Victoria  required  it,  not  for  the  purpose  of  ^viog  effeot  to  the  Aot 
of  12th  Viotofia,  but  solely  to  suspend  the  opérations  of  the  Impé- 
rial Act.  As  soon  as  an  tact  was  passed  in  this  oountnr  to  canry 
out  the  treaty  in^anada,  the  law  had  been  fulfilled,  and  the  jvîris- 
diction  transfei'red  from  the  Impérial  Pàrliament  to  Ûlq  Caaadian 
Parliament.  1 

If  not  for  this  object,  what  was  the  Canadian  le^slation  to  efiect? 

If  then  thèse  acts  had  not  required  an  Order  in  Cogncil  to  be 
given,  such  order  would  not  hâve  been  necessary.  \ 

T^e  Act  12th  Victoria  anji  |h^  Impérial  Act  6th  and  7th  Vict<»ia, 
bodi  stated  that  as  soon  asi  Éer  Majesty,  bj  an  Order  in  Counoil, 
suspended  the  6th  and  7th  ^ptpria,  then  the  Canadian  hw  should 
corne  into  force.  This  ordejr  ura^  given,  and  the  Impérial  Act  was 
consequently  suspended.      1  > 

Thus,  then,  by  the  paasin  ;  of  the  24th  Victoria,  àîl  the  powers 
of  the  govemment  were  broi  ight  into  harmonious  action. 

iThe  Le^l^ture,  the  Jud  cial  and  the  Executive,  ail  ooncurred 
in  giving  ML  effiact  to  tlie-tr^aty. 

The  powers  oonfbrred  by  this  concurrent  action  upon  the  Judges 
and  Magjbtrates  of  the  country,  in  gênerai  terms,  were  as  a  mère 
matter  of  local  jurisdiction  4nally  regulated  by  the  amending  Aet. 
For  the  12th  Victoria,  cha^.  19,  in  ^ring  this  jurisdi<ition  to  the 
Judges  and  Magistrates,  generally,  might  have^een  inconvénient 
in  practice,  as  me  most  important  questions  of  i|itemati(mid  htyf 
might  hâve  been  lefl  to  th^  determinatio|i  of  any  country  magiii'^ 
trate,  who  could  not  be  àupi^^d  to  bring  to  such  important  eooA- 
derations  either  the  requisité  time  or  the  knowledge  to  deal  satis- 
factorily  with  the  subject.  I  say  this  in  no  spirit  of  blâme,  bst 
solely  to  show  how  ax^d  for  what  purpose  the  amending  Âot  wis 
passed,  and^that  in  so  leaving  the  investigation  of  thèse  points  to 
more  ^experienced  Judges,  Parliunent  in  no  way  exoeedôd  its 
powers  or  violated  any  of  the  provisions  required  for  efifeotoâlly 
carrying  out  the  treaty.         ,      ^ 

The  treaty  only  received  législative  effect  in  tiie  United  Statec^ 
in  1848,  se  vend  years  after  it  had  been  passed. 

Whether  such  législative^  action  was  required  to  give  eflfeot  to 
the  tireaiy  had  been  then  disoussed.  ^ 

The  case  of  Nash,  otherwise  callpd  Robbins,  delivered  up  in  ^ 
Charlestown  for  mutiny  and  murder,  and  afterwards  exeoiliiea  in 
Jamûea,  had  nûsed  doubts,  and  thèse  doubts  were  therefdre  efibo-  ' 
jbufUly  put  an  end  to  by  the  passing  by  Congress  of  Ifae  Ati^tS 
lo4o. 
^^3>ofle  deaupou»  of  fugtiie^<>3BmâMag^-^r^egtioEr«»Teforfod 


Thei 
6th  and 
and  Ûu 
Order/i 
by  it/v 
thiyjPr< 

ït  Wî 
me  Imj 
«lominio 
/as  the  ( 
/rying  ii 
accordi 
that  pai 
it'Yemai 
the  sub 

Whe 
the  sub 

ïf  it 

it,  and 

the  ma 

*    Iftii 

it  is  noi 

The 
pended 
ment  si 
ihe  As] 

Thé 
the  cas< 
«      Ist. 
Victorii 
for  anol 

That 
6thand 
necMsa 

That 
became 
ihe  cou 

That 
law,  an 

'limperii 

mt 

24th^ 


feo  Hind  (m  Hahea»  Corpus^  pa^e  5ÎS1,  and  following  pages,  y^re 
the  subject  has  been  to  a  oertûn  estent  discussed. 


prOTlSK 


âà^. 


X. 


#  ,►< 


/ 


161 


The  mfl(ment  then,  that  the  Order  in  Council  required  by  the 
6th  and/Tth  Victoria, and  12th  Victbria, chap.  19  had  been  passed> 
&nd  the  proclamation  made  in  tlùs  country  to  thi^t-  effect,  thè 
Ordemn  Council  had  fulfilled  the  object  intended  to  be  atfaûned 
by  i^viz.,  the  suspension  of  the  Impérial  Act  within  the  limita  of 
tnis/Province,  and  was  no  longer  necessary.  ^       '  ' 

yfOB  intended  in  the  'first  instance  merely  to  déclare  that  as 
Impérial  Act  alone  could  le^late  on  the  subject  for  ail  the 
lominions  of  Her  Majesty,'the  Act  had  been  passed  ;  but  so  soon 
/as  the  Canadian.  Parliament  had  legislated  for  the  purpose  of  car- 
/  ryiug  into  effêct  that  làw,  within  the  jurisdîbtion  of  that  Parliament, 
according  to  its  own  laws  and  institutions',  that  the  Impérial  Act  in 
that  particular  would  be  accordingly  suspended.  Once  suspended 
it*>emained  suspended,  so  long  as  Canadian  législation  existed  on 
the  subject. 

Whether  the  Canadian  Parliament  could  eriginate  législation  on 
the  subject,  is  beside  the  question. 

If  it  had   authority  in  the  first  instance,  it  was  delegated  to 
it,  and  delegated  by  uié  only  authority  which  had  any  coii|rorover 
the  roatter. 
'  *    If  the  Impérial  authorities  were  satisfied  with  the  matter,  surely 
it  is  not  for  the  pepple  of  this  country  to  complain. 

The  Impérial  Act,  therefore,  once  suspended,  it  remained  sus- 
pended, so  long  as  there  remained  on  the  Statuté  Book  any  enact- 
ment  substituted  for  the  Impérial  one,  oarrying  into  complète  effect 
the  Ashburton  Treaty. 

Thè  conclusions,  therefore,  which  I  deduce  from  this  branch  of 
the  case  after  the  passing  of  the  24th  Victoria,  are — 
«      Ist.  That  the  24 th  Victoria  was  an  amendmg  Act  to  the  12th 
Victoria,  chap.  19,  and  simply  substituted  one  mode  of  procédure 
foranotber. 

That  Buch  power  was  expi«88ly  given  by  the  fifth  secticm  of  the 
6tii  and  7th  Victoria,  chap.  76.  That  the  power  given  to  regulate 
necessarily  implies  th^right  to  ainend. 

TheA  such  amencment  havmg  received  the  Bo^al  assent,  it 
<  became  law,  and'was  absolutely  oinding  on  ail  ihe  inhabitants  of 
ihe  country. 

That  ^pNis  more  «fl^^chtally  to  oarry  eut  the  provisions  of  tiie 
law,  and  me  treaty,  ad^M^ared  in  tiie  Impérial  Act. 

IhAt  it  hàd  not  ihtmmtM  reidving  tJie  6£h  and  7th  Victoria, 
Nbnperial  Statute.     ^W     * 

TÊkt  the  only  lainr  ifi  force  in  tiie  Provinbe  on  tiie  subject,  is  the 
24%  yîctoriaj  oonsefl^nently  tiiat  my  WMWjat  iasued  pnder  tha_ 
prôviaidos  cdT  ÛaA  Ïa]ki8  le^  to  aïl  ÎE^nti  ieA  porposes. 


X 


:'t> 


;  \ 


T 
.1 


t 


-jnnv 


1;.^ 


-,  ♦ 


♦  • 


/ 


:♦ 


I  néed  not,  théière,  extend  the  argument  an j  further.  I  bave 
«onfined  it  tothe  examinajt^on  of  the  gênerai  proposition^  that  i^e 
Impérial  Statute,  6(b  and  7th  Victoria,  waa  m  j^rce,  and  that  I 
-was,  therefore,  without  jyimsdiction  in,j|n|É^ 

I  will  nçt  touch  on  the^smaller  poinw1^S8^1;ending  in  lEËImaellres 
only  to  support  the  gênerai  objection.  I  bs^ve  coûfined  the  argu- 
ment to  ft  s|)[ictl7  légal  view  of  the  objection,  witbout,  I  trù^t,  bemg 
unnecçâiil^  diffuse.  ^ 

been  mode,  in  the  course  of  the  arguments,  tc^the  fact 
that  .dilRî^nt  opinions  havè  been  entertained  on  tbis  subject. 
Wht^nay  be  the  opinion  of  others  on  this  point,  it  is  neither 
my  blJBaiess  nor  my  duty  to  enquire.  I  aîn  not  É»e  to  criticise 
the  op^iions  of  others,  but  to  state  my  own.  Tbis  opldon  bas  been 
formed,  irrespective  of  the  opinions  of  ail  others,  and  I  may  say  I 
haf e-  never  entertiluned  a  doubt  on  the  subject.  .   \ 

In  doing  this  I  bavestated  the  proposions  of  law,  which  I  cmj,- 
sider  aa  necessarily  flowing  fîrom  the  argument,  and  after  a  carefulj^|L 
examination  of  the  matter,  I  bave  come  to  the  conclusion  that  my^^ 
warrant  was  prop^ly  issued,  and  the  objection  taken  by  the  Counsel 
for  iÉ^prisoners  il^  tberefore,  overruled. 

Jlfr.  Kerr  desired'Ioebring  under  his  Honor's  notice  another  ob- 
jection; viz.,  that  the  prpsecution  had  nok^  imder  the  24th  Vie, 
ohap.  H,  made  put  any  case  ajgainst  |^e  accused.    !Qft  said  that  the 
12th  Vie,  chap.  19  gave  to  pudsp  ^  magistrates  o^  this  OQuntiy 
cognizance  of  crimes  committea*'  wi<||n  the  juriÉiot^on  of  me 
United  States,  or  of  v^  of  mdi  States";,  but  in  ^e  24th  Vie, 
cap.  6,  the  words,  "  ortBkny  iôi»uch  Statei,"  do  not  appear.    It    y 
becomes,  then^  neoessa^nbo  enquire  whether  the  iHÀ  committed^ 
by  the  accused  at  Si;  JUbans,  Yermont,  oonstituted  a  cripie  com- 
mitted  within  the  jurisdkiâliof  the  Uni^  States  c^^merica. 
The]#iras  with regard  tQ%«^u.  States,  a  £iPi^  jtu^sdiWon  ancTa 
State  jurisdiotion.    ïhei  former,  or  U.  .Si'juris^tiîÉ;  ;(ra8  baseéÉÂï 
certain  grants  of  sovereign  rightaiand  privilagd^i^ê  over  by  the^^ 
]>èoi>||é  of  the  se  vend  Sta-tei  oompoml^  tJ^ïoimer  Union.    N^  ^ 
k       •odiél'  righta  and  privilèges  attaohîi^»  tWOovàrnment  of  the 
^       United  Stiatip;  and  ail  o^ér  right^flB{irflieges  of  sovereignty 
«ot  eil^reas^  made  over  1^  the  (>)n8Îilation  to  the  Fédéral  gqvem- 
it,  atrached  and  tenuûned  to  each  olHàe  several  States.    Jn  sup- 
of  tlûs  he  would  refer  to  "  Story  on  the  Constitution,"  p.  412. 
e  Govemmenfc  of  thei  United  States  could  not,  then,  clama  any 
fbwer  not  granted  to  it  bythe  Constitution,  and  the  povers  aoioally 
granted  must  be  such  àa  wese  given  expressly  or  by  implication.    We 

had,  Aen,  to  cm(|ttire  whefcer  the  juriadiotion  of  jhe  TJiiited  States 

extended  d?er  cnmea  committed  within  the  body  of  one  of  tiie  several 
<^^£^tes  qf  the  Union.    He  oited  the  opinion  ofChief  Justice  Marshall, 


% 


f 


f'âfe'.  ■* 


..iSe^;,!., 


the  crime 
ita  own  L 


m . 


/,.: 


tfie  Constitution  ând  C  oflhé  U  8  tJl'iT'f ^'"''^*-    ^«^^^ 
nanower  to  leirislate  folsf^w      ?-'*^e  *^ederal  Goverftment  had 

HiaHônor's  warrant  stat*.«i  th^Ttu     I®™?^*-    au© conclusion  of 

beenlommifted  ait  the  wi»  h?  '^^•i""^  ^*^«  1^^% 
^  ^hich  had  jumdicISrovr  it^  Th«  ^!!i  '* -"•  ®**'«'  *^^*»t 
'       RobberV^Jn  a  State  or  lîl^l  »*l  Tl»?  conséquences  *ere  thèse  ;  " 

the  U.  S^oCmenSa  Sl«r^^^^  of 

of  had  alone  1  ^^1*21     V^^^^^  the  Government  there, 
,Tight  in  tWs  insS     tSww,  ^!"^^'  ^"^  «*»«««d  that. 

to  thjs  particnJar  charffA  »*«.  *k        •    Vv™"  '    And,  ip  respect 

junsdiction  over  thi«  »m>^ii^  ^^-e     V\  1  î"^_^ûited  States  any 

if Vennpntt    ^ ft^^S^L^^Sl^^l^^ 

it  exclusiT*,  or  was  ik  concurrent  ii^  th^t  Ir  thf  ^^^'1"^'  *" 

/      tendôd'on  the  othe^  aide  ttat  il  K«ï  kîL     Albana  ?    ît  waa  côn, 
comi&itted  in  the^Sâie  of  ît^A^  frôea  pwyed  thut  thia  oifeace, 

îwx  to  prove  this  faeti .  BuénE/?  ? J*"»^°'  ï»w^er  lato  »hô 
formation  BadX  atfemiï  w?  '  ?  *t'  ^«««';  ««>»  »  ^  ia* 

lawyerXhad-W^Sf.  A*'L-,.^«*^^  ^e 

tion  ^the  State  of  v!S^     1  wclteiFely  i»ithm  €e  jàrîadîo^ 

the  crime  of  robbery  committerin^SAfr  ^  J*»"^»»*»»  ovér 


•■/ 


> 


■^').  ', 


yI 


\  1 1 


(. , 


,i't-' 


If'i 


.■  '  m 


■ 

1 

ni 

1 

\ 

•-* 

^ 

"    ■    ^'  ■    ,  ■   '  «'       164        ■' 

diotioofi  in  tbd  United  Stailiçs,  ma  ihe  off«nce  charged  hère  was  one 
within  the  exclusive  jurisdiction  of  the  State  of  Yermont.  The  &iki&ers 
of  our  law  appeared  to  be  well  aware  of  ihia  fact,  as  they  had  made 
provisions  éxpresBlj  for  those  two  jurisdictions.  The  statute  12t^ 
Viotona,  cap.  19,  was  evidenljy  drawn  up  mût:  &  careful  wéw  of 
this  distinction  as  to  the  two  jonsdiotions,  and  in,  this  respect, har- 
monized  exaotly  with  the  pro visions  of  the  Constitution  of  the  Ui^ted 
States.  But  the  â4th  Yiët-,  cap.  6,  hastilj  prépared  to  Ikçiltti^te , 
the  extradition  of  fugitive  slaves,  had  diaregardod  the  distinotion, 
and  provided  onlv  for  the  extradition  of  persoss  who  had  committed 
certain  crimes  witlûn  the  jorisdiction  of  tiie  United  States,  omittine 
to  miake  similar  provisions  with  rmpeot  to  '*  any  of  such  Btates";'ana 
t^e  omisffion  of  anj  provision  with  regard  ^  "  any  of  such  States*^* 
had  been  oarefullj  made  wherevejlr  one  had  oooanred  in  tiie  former 
statute.  This  must  surely  niean  èomething,  and  only  oiie  oonstriic- 
ti<m  could  be  put  upon  it.  The  n^ord  ^' junsdiction"  inourslatute 
should  be  taken  in  its  techniea|[  sensé;  Sedgwiok,  261  a&d  268, 
lùd  down  that  when  technical  words  occurred  in  a  Statute,  thej 
must  be  taken  in  a  technical  senâe.  The  tedmicaJi  meaning  of  the 
tlrord  "jurisdictiôa"  was  perfectly  pl^^  and' the  Court  would 
observe  that  in  our  atatutes  care  ma.  been  taken  not^  to  use  it  in  its 
popular  sensé,  but  in  its  striotlj  le^  sensé. 

Mr,  Johnton  BÙâit  was  stated  by  the  counselopjjoeite^at  we 
w;ere  invoking  a  jurisdiotion  we  had  no  right  to  invokc)  and  a  great 
dèal  had  been  said  as  to  tiie  domeatic  lorisliotion  of  the  United 
States,  and  of  the  Courts  of  the  United  Suteslhpt  not  one  word  as 
te  the  sovereignty  of  tiie  United  States,  an^wl  to  the  will  of  those 
two  Powera  who  contraoted,.and  whose  coiilnidt  we  were  to  ^ve 
effèot  to  if  we  could.  There  wa»  a  vast  dufi^renee  between  one 
State  and  several' States,  and  the  meûûng,  of  the  word  *' jurisdic-<^ 
tion  "  in  ihe  sensé  of  sovereignty  in  which  it  was  used  by  nations 
oenkacting  as  the  United  States  and  Great  Britain  had  contracted 
by  ibis  treaty.  It  could  not  be  contended  that  Uie  two  nations  had 
power  to  tegislate  one  thûag^  smd  the  local  Lejj^slatures  witiûn  the 
sovereignty  of  each,  ano^er.  The  word  ** jurisdiotion"  meant 
sovereignty  or  nothiiig  when  àpnlied  to  nations  ;  and  tiie  parties  to 
theiAsnbiuton  treaty  ooiûd  not  hâve  meant  anythiug  so  sensdl^ss 
as  that  the  juriadiction  of  the  Fédéral  Government,  in  cftsës  of 
extradition,  was  merely  a  domestic  ^juriadiction,  ^tending  only 
over  the  pistriot  of  Columbia,  the  imi^  Uaàa  and  such  places  as 
dookyards  and  ports.  IKd  Great  !Ôntain  then  say,  ''  We  mean 
ne\rer  to  agk  foy  ^g  extaradition  of  gny  fe^tirn  wMttover  except 


"of  ihoM  Biïnd  m  the  îM&in^^  wm  wmmmmùïï 

WOold  be  at  variancewUh  common  sensé.  The  word  "  jorî^dkstion" 
môst  meaii  the  exercise,  the  possession  of  powe^r,  and  the  nations 


State 


.■  ^;  •■ .// 


.MO:, 


"i> 


JV.-.. 


-syr 


'// 


165 


:it  'i: 


«ontracting  with  regard  thereto  could  not  moan  by  tho  word  the 
actual  domestic  jurisdiotion  èxercàsed  by  a  Court  of  Quartor  Sea- 
sioDs,  by  the  Court  of  a  State,  or  by  the  Suprême  Court  of  anV 
State  or  the  United  State».  The  treaty  did  not  mention  the  woniu 
"  one  of  the  said  State»,"  but  taerely  "  the  United  States."  The 
words  were  not  that  theirime  ahould  hâve  begn  oommitted  agunst 
the  juriadiction  ofthô  United  States,  but  "  in  the  jurisdictïoa  of 
^P  United  States."  What  Mrai-ajle^ed  in  the  warrant  wiw,  not 
i^at  tbe>  offenoe  was  oornnûtted"  a^tmst  the  juriadiction  ôf  j^ 
United  "fitate'a,  but  agaJn8t„the  peace  of  the  State  of  Vençont,,  ône 
of  the  Jlnited  Statqa  of  America,  and  within  the  juriadiction  of  tie 
aaid  United  States.  ^This  waa  ûXJ^ht  ma  necessarv.  ,  If  f he  jm^  « 
soners'  counael  held  tjie  correct  vrew,  the  treaty  wouidrbe  a  nûlhty. 
Thvn  could  b©  no  extradition  .for  any  o9i)ncé  comrnitted  a^iùnst, 
the  laWs.of  tiie  Ùnitëd  Statea?  properly  àô  oalled  except  m  the 
amall  District  of  Columbia.  He  believei^hat  the  treaty  and  sta-. 
tûtes  paased  tô  give  it  çfect  must  be  construed  in  the  moat  liberiU 
And  not  thtf  oibat  narrbw  n^anner^  and  tèat  the  United  States  Qot- 
emmeat  ialf  power  to  extradite  as  regards  erery  State  io  the». 
Umop.  "^  .  , 

Mr.  BeoUn  foUowed  on  the  aame  w4e.     •  -tl'   ' 

Mr.  Éethune  contended  that  the  Court  could  net  put  ûpon  Ae 
•words  **  within  Jhe  juriadiction  of  the  United  Sfiitea  "  the  strîèt 
Interprétation  g^rea  them  by  tiië  Cîounsel  for  J&ie  defence,  imid 
cited  au^oriUes  to  show  that  in  înterproting  statutes  the  real. 
intention  ,woul4  always  preYwl  over  the  Utoral  intention  or,^  ex- 
pression. Kie  preamble  ofthe  A-ct  must  be  cdnsideredaa-^ 
part,  and  explanatory  thei-eof  ;  and  the  24th  Victoria  judged  by 
this  principle,  wid  receiving  its  proper  btoad  and  libéral  interprète-, 
4âon,  wouW  sanction  the  view  of  the  prosecu^on,  ttiat  ^e  United 
States  had  powef  as  regards  every  State  of  thè  Union  m  the  mat 
ter  of  extradition.  Was  it  *o  be  sapposed  that  while  ôrist  Britûn 
treated  re8{>eoting  the  extradition  of  oriminalsfrom  ail  parts  of  her 
hroad  empire*  the  United  States  was  to  be  understood  as  agreemg 
to  extradite  witb  référence  toonly  Bl  fe|f|j^^  seôtions  suoh  as  the 
district  of  Côlttmbia?  The  words  oWé*lBaty  bearing  upon  the 
«nbject  werg-^*  offences  committed  wtoijlhe  jiuritdiction  of  either 
toation-"  Thç  ùtatatçs  used  the  same  ^hi^ser  The  only  qjw»* 
Jion  was-^^M  VenBOnt  witinn  tiie  junsdiotion  of  the  United 
Stàtés  ?  BVôry  ifîtoées  swore  it  was.  We  wewr  bound  to  give 
1iie7bi^o>^<><^  ineiînîng  to  <tiie»  word  '' jurisdiclMn  "  in  thia  case, 
iand  c<rald  not  say  it  meant  tiie  judioial  jurisdicticmy  but  meant 
'*  within  lïhe  territorial  juriadiction  of  the  Urôted  States."    The 


Bimë$g^itâ^ad~ëif^  iereraî  a«iâi<mQ«;  ffiëfiilBng  «Tatteî,"  in- 
«uppoH  <f  hki  viows.  •   ' 


j'i»  * 


n 


■'.  A'     m 

'•Si 


rmi  *'" 


r 


-f^ 


"D 


0' 

yV.             . 

/> 


.  ■■  ■  »,    ■/, 


.w  ' 


'*.. 


m 


h   .      *-; 


166 

.'^''-  '^^*'  was  astonished  to  hear  the  argumente  °of  his  leamed 
fnends.  ^The  State  of  Vermont  had  given  over  to  the  Fédéral 
Govemment  certain  righte,  but  it  had  not  given  the  right  of  juris. 
diction.  He  maintained  that  where  the  court  of  a  country  could. 
not  take  jurisdiction  of  an  offence,  that  offence  was  not  committed 
within  the  jurisdiction  of  the  country  itself.  The  Government  had 
brought  a  gfeat  deal  of  influence  to  bear  on  thia  case;  but  of 
course  every  body  was  aware  that  a  peace-offering  mttst  be  made 
to  the  Fedei^aJ  Executive.  A  number  of  people  were  of  opinion 
that  the  pnsoners,  though  proved  belligerente,  should  be  given  up 
in  order  that  our  fears  might  be  silenced,  and  the  bugbearof  mture 
danger  averted.  Everythmg  had  been  donc  to  throw  difficulties 
m  the  way  t)f^he  defence,  stiU  it  was  to  be  hoped  that  this  Court 
would  render  to  the  prisoners  that  justice  wfflch  was  their  due. 
It  was  to  bè  hopgd  that  his  Honor  sitting  there  would  do  justice 
to  thèse  men  regardless  of  ccbsequences. 

Mr.  Laflamme  argued  that  there  waa  nothing  to  justify  the  ren- 
dition  of  the  pnsonera  pn  this  charge,     The  United  States  had  a 
certain  junsdiction  belonging  to  the  Fédéral  Government;    the 
State  of  Vermont  had  a  separate  and  independent  jurisdiction  of 
its  own,  and  this  charge  was  one  of  those  which  were  cognizable 
only  by  the  jurisdiction  of  that,  State.     In  fact  and  in  law  the  cl^m 
now  put  forward  bythe  prosecutjon  was  utterly  untenable  ;  and  the 
Ccwirt,  he  thought,  could  corne  to  no  other  bonclusion.    Our  au^o- 
nties  had  gone  out  of  their  way  to  mt^ere  in  this  case.     We  had 
seen  members  of  the  Government  postingt^off  to  Washington  to 
appease  the  avithorities  there,  jpst  as  if  there  weA  no  law  in 
Canada  to  meet  cases  of  this  description.    We  hâve  sli/ members 
of  tte  Govemipent  go  to  Washington  to  promise  that  we  would  be 
good  boy8.in.'fu^ure,  lest  General  Dix  should  corne  over  to  Canada 
and  rescuc^the  -  prisoners  from  our  justice,  so  that  they  might  be 
given  up  to  their  justice.    But  namatter  how  the  Government  of 
this  country  ihad  interfel-ed  in  this  case,  he  (Mr.  Laflamme)  was 
certain  that  this  Court  would  deal  by  thèse  young  men  as  the 
pnncij)les  ôf  British  dbnstitutioftal  law  directed. 

Judge  Smith— l  will  talie  the  case  into  considération,  ànd  cive 
my  decision-on  TÇuesday.  *  *  T 

The  Court  then  adjouimed.         '  '      \      i         .  w 

,■    —  r       •  .-       -  ^   '     , 

„.  *  *  TUBSDAY,  J^.  lOth,  l$i6.  • 

His  Honor  Judge  Smith  gave  decllion  on  the  point  raisjdto;,. 
the  counsel  for  the  defence  on  Satufday,  as  follows:—  .  «-^v^ 

This  objection  reats  on  the  ground  that  tha  nflfrnce  char;rt  '"**'''*' 


covered  by  the  Ashburton  Treaty,  that  it  is  an  offence  agi 
State  of  .Vennont  ;  and  as  the  State  jurisdiction  of  V* 


■  Ç' 


,  \ 


^     *> 


States 
of  offet 
alone. 

That 
States, 
by  posii 
this  dis 
or  of  M 
either  i 
States, 
-last  woi 
intentiq 
içffencea 
States. 
in  supp< 
«risqnei 
Vermou 
the  Tçr 
St^lté 
his/di^cl 

IhaV 


The  saî 

the  Sup 

Thisj 

which  C( 

\it  existe 
objéct  0 
consequ 

-jin  the  I 

jurisdict 

.    of  Justij 

^  jurisdict 
sensé,  ii 
and  is 
jurisdict 

.  jurisdict 
ovintoiK 
is  àe«es< 


-exeroise 
or  to  su| 
th^^ehtt 


*'. 


ive 


V*" 


■\ 


167 

separate  from,  and  independent  of  the  jurisdiction  of*  the  United 
'  States  it  is  not  covered  by  the  24th  Victoria,  chap.  6,  which  speaks 
of  offencèa  committéd  withjui  the  jurisdiction  of  tiie  United  States' 
alone.  ^        - 

That  thé  jurisdiction  of  the  United  ^tes,  and  that  of  severaf 

States,  are  separate  and  independent  of  èaôh  other,  and  i:egulated 

b^  positive  law.    That  the  12th  Victoria,  chap.  19,  acknowledged 

this  distinction  by  apeàking  of  the  jurisdiction  of  the  United  States, 

or  of  an^of  8ucn  Status,  therehj  covering  iU  offences  committéd 

„     either  withio  the  jurisdiction  of  the  United  S^tes,  or  of  any  such 

.     Siateif  and  that  tliô  24th  Victoria,  chap.  6,'  having  omitted  thèse 

».    -last  words,  viz.  :  "  or  of  any  such  States,"  that  it  nécessarily  and 

intentiqnally  restricted  the  opération  of  the  Ashburton  Treaty  to 

tçflfences  committéd  solely  within  the  jurisdiction  of  the  United 

States.    Tiiat  it  hsjs  been  proved  in  this  case  by  the  évidence  taken 

in  support  of  thig  application,  that  the  offef  ce  "charged  çigainet  the 

«risqnenp  was"  comniJtted  within  the  jurisdiction  of  the  State  of 

Vermont  and  agaîast  fhe  laws  of  that  State  alone,  although  within 

the.|çrrit<»ryH)f  the  United  States,  that  it  does  not  fall  within  the 

Stjftuté  2'lth  Victoria,  and  consequenUy  thé  prisoner  is  entitied  to 

hi8j4ipcl||r|^ë.     J,?       v," 

I  haVi  thu^i  steited  tl^  objection  in  its  broadest  possible  form,  that 
itWv  be  covered  by  thé  argument  rtrade  by  the  Counsel  for  the 
prftwnJÉife     ■    >^  ■* 

ïbOl|^.rton  Treaty  'Was  paased  for  purely  national  purposes. 
The  suifWfei'  of  pertiona  for  jmputed  crimes  can  only  be  done  by 
the  SupremOîxecutive  authority  of  independent  nations.         * 

This  power  in  Greïkt  Britâin  existed  in  the  Impérial  Pariiament, 

which  cottld  alone  legisïate  for  the  Empire.     In  the  UMted  States 

\it  existed  in  tiie  Suprême  Fedet*!  Législature  of  the  liSwn.    The 

objéct  of4l»e  treaty  could  onlv  be^ttained  by  the  natfbnal  power, 

coBsequently  it,  did  noV^-esidç  in  any  of  the  United  States,  but 

j  in  the  Fédéral  législative  p<»<rer  of  the  United  States.    The  word 

jurisdiction  '^  wot  used  tp  its  limite  J  sensés  as  in  référence  to  Courts 

of  Justice,  ôT.^tflrtejegisl^tion,  but  to  expfess  the  Siïprerae  National 

^  jurisdicïïoqis^f  the  anpit^.îtseîf.     ïn  this  sensé,  and  in  the  only 

seiise,  iu'  which  the  word  yurisdiction  can  be  herc  U3ed,  it  means, 

and  is  the  80v»i»eign  -jurisdiction  pf  the  jintion,  \i;hich  ajbne  had 

jurisdiction  WiemX  yt^Hiiê  subjecV    To  suppose  t|jç^fr  the  woi^ 

jurisdiction  c^n  be  herVuse4  in  a  limUed  sensé,  as  eithôr  expreasing 

0©  in^din/t^imply^he  jurisdiction  of  ^ny  State  ôr  of  any  C^rt 

is  Ae<esflariiy  to  suppose  <^t  thèse  inferiorjuriadictions  wpuld  haVi 


^^«eroised  ftny^)*Rr6ri^îat 


hirsubjtfctrmattérofifetrestyr" 


wpui 


\ 


.A 

: 

I 


ri 


Il      '       h'nl 

J.     fjv 
(' 


(  {, 


ISf 

'i" 


or  to  iupposo  that  tiie  Supreo^  Fédéral  anthorit^aving  legislated, 
thTB^ehtire-natiçin'had  wilfi^lly  restricted  th«  <?jWects  of  the  treaty 


(^ 


^'9 


'S^ 


V-. 


î'" ir' 


168 

to  a  small  part  only  of  its  own  territory,  a  supposition  which  cannot 
be  entertained  for  a  moment.  By  the  6th  and  7th  Victoria,  chap). 
76,  the  treaty  received  a  législative  authority  and  force  witÛn  the 
territory  of  Great  Britain,  aûd  by  that  law  a  provision  is  made  for 
^  the  surrfender  of  persons  charged  with  offences  committed  within  the 
juriâdiction  of  the  United  States," and  who  should  be  found  within 
the  territory  of  Great  Britain. 

The  Word  jurisdiction  hère  nmst,  therefore,  mean  territory,  and 
must  mean  the  territorial  jurisdiction  of  the  nations,  or  it  can  méari 
nothing.  The  same  meanint  is  given  by  the  Act,  where  pwer  is 
given  to  magistrates  and  judges  of  both  nations,  and  the  whole  law 
itself  cle^rly  indicates  what  Parliament  intended,  when  the  word 
jurisdiction  waa  used.  So  also  in  the  United  States,  where  this 
treaty  with  other  treaties  of  the  aame  nature,  received  legisla%e 
force  by  Congress.  CongE««s  legislated  for  the  several  States  as 
well  as  the  United  States.  Hurd,  on  Haheas  Corpun,  on  page  679, 
says  :  "  The  duty  g(  surrendermg  the  fugitive  arising  only  from 
Treaty  stipulation,  its  performance  is  supposéd  to  appertain  to  the 
Executive  department  of  our  Government,  which  by  and  with  the 
advice  ^nd  consent  of  the  Senate,  constituted  the  treaty  making 

g)wer;  and  by  the  discussion  which  took  placé  in  the  case  of 
olmes  and  Jennisen  et  al.,  in  14  Peters,  it  was  settled  that  no 
Govenv)r  of  any  State  had  power  to  deliver  up  to  a  foreign  Gov- 
ernment a  person  charged  with  having  committed  a  crime  in  the 
territory  of  that  Government."  Thus  it  am)eaTS  évident  that  the 
Govemment  of  the  Umted  States  Ànd  the  &ipreme  Court  of  that 
Government  concurred,  that  in  ti'eaklâps  the  words  jurisdiction  and 
treaty  were  convertible  tenus.         >  :    . 

So  far,  therefore,  as  the  Impérial  Act  ia  ooiicemed^there  càn  be 
no  possible  difficulty  on  this  point. 

But  the  Canadien  Parliament  m  legislating  on  tiié  subject  under 

the  power  confcrred  on  that  body  by  the  Act  of  6th  and  7th  Vic- 

'  toria,  introduced  into  thô  firflt  clause  of  12th  Victoria,  the  worda 

which  hâve  given  risè  to  the  âifficulty. , 
•  *  That  Statute  said  throughout  the  Act,  thaC  sufrendèr  should  be 
made  by  reason  of  offencie  committed  within  the  jurisdiction  of  the 
"Tlmted  Sta*es,  orof  any  of  the  said  fitete»,  thereby^eparting  from 
the  words  of  the  6th  and  7th ,  Victoria  aniî  of  the  treaty  itaelf. 
And  so  throughout  the  said  Act  12^  Victoria,  the«aiffi^  Wàrds  are 
uBed.  Thèse  words,  so  \innéce8sar|r.  to  express  thé  objects'of  th» 
treaty  itself  and  the  6th  and  7th  Victoria,  hâve  given  rise  to  the 
idea,  that  it  was  the  intention  of  the  Législature  to  make  the  word 


i: 


ufisdictiou,  used  iu  .the  treaty,  andiirtfao  <^  anitTttf 


«  onderstood  to  be  used  in  m  liraitcd  and  subordinate  sensé,:  and 
thereby  t(^c^eate  the  sape  diatmctîon  in  this  Act,  ip  explaining 


T 


'    ••  i . 


.'       'a'-  "*"'    ''.*"" '~ 
i         ,  *  '  '    f.  ■  ■ 


'  $ 


.::l. 


169 

treaty  obligations  which  exista  when  the  word  is  used  in  its  limitod 
and  subordinate'sénse,  to  express  the  distinction  between  Fédéral 
and  State  jurisdictions,  or  in  Courts  of  Justice. 

This  was  clearly  a  mistake  of  the  Le^latuïe,  and  beyond  its 
authority  to  do.  For  such  distinction,  if  it  could  exist  at  ail,  would 
hâve  changed  the  contract  between  the  two  Govemments,  and 
wç\ild  hâve  nullified  the  treaty  itself-^a  povrer  which  the  Parlia- 
mênt  did  not  pbssess. 

But  it  is  clear  to  me,  from  the  whole  act,  that  tW  additional 
words  were  used  not  in  suoh  a  ôense,  but  from  extrême  caution, 
and  a  désire  more  fuUy  to  explain  that  th»  word  juià$diction  used 
in  the  treaty,  was  to  extend  over  the  several  States  in  the  same 
sensé  in  whi6|iit.  was  used  when  applied  to  the' United  States, 
although  this  was  altogether  unnecessary,  and  was  calculated  rather 
to  confuse  and  to  croate  .doubts,  than  to  remove  them, 

The  24th  Victoria,  therefore,  removed  thèse  words  so  impro- 
perly  used  in  the  t2th  Victoria,  chap.  6,  thereby  restoring  the 
word  "  juriadiction  "  to  its  true  and  original  meaning,  as  given  to 
it  by  the  treaty^  and  by  the  6th  and  7th  Victoria.  ïhe  third  sec- 
tion of  the  12th  Victoria  clearly  show  how  improperly  thèse  worda 
were  used.  j,* 

For  b^  that  section,  power  is  there  given  to  any  Govembr  of 
any  particular  State  to  a>pply  for  the  rendition  of  any  person 
charged  with  crime,  with  plower  on  his  side  to  surrender  to  this 
country  any  person  ôo  charged,  and  found'within  the  ItoitB  of  his  j 
particular  State.  >  "^-^   ,. 

Such  a  powej^does  not  exist.     It  is  néither  to  be  found**!!!  the        ' 
treaty  nor  in  the  Impérial  Act,  and  it  is  not  to  be  founâ  in  anyr    i 
Act  of  the  Congtess  of  the  United  States.  '     ^ 

Thti^  Chief  Justice  Marshall,  in  answer  to  «'question  put  in  the 
argument  on  thepoint,  (see  his  work  on  the  Fêlerai  Constitution, 
page  142-3)  :    What  is  the  Jurisdiction  which  a  State  professes  ? 
"  We  answer  without  hésitation,  the  jurisdiction  of  a  State  is  co- 
extensive  with  its  territory,  co-extensive  with  ils  legislatiYe  power." 
r^is  is  uncjoubtedly  true.    The  argument,  when  applied  to  tike       ^* 
IMted»  States,  is  clear.    Thus  the  jurisdiction  ôf  the  Foderal 
Oovernmei^  Which  is  jsupreme,  is  as  extenéive  as  its  législative 
power.    This  le^lativè  power  extends  over  the  whole  United 
States  in  referepc©  to  mattera  «xdusively  w^thin  its  fiinôtions,  web 
iM  the  treaty  making  power.    Therefore  Congress,  being  the  1^|^     ..^ 
lativç  powef ,  ha&  exclusive  jurisdiction  over  the  territory  of  th^  ^ 
United  States  in  thk  respieot,  and,  therâfore  jurisdiction  and  terri-t  '• 

power.    Npw,  the  départe  States,  in  -^  r4ip«f?t,  hâve  Qolej^al»-    ^ 
tàfç  power  whfttevef,  tuid,  oouflequenUy,  tiMy  can  hâve  na jumoKo-       1 


■I     ,'     - 

-'  '  .,f  I 

f  il' 


iî? 


f. 


■\'L 


'IV    .  •^vt."*,*' 


\H. 


<  ft»;'H  •"/  T  jn 


ï^*^ 


I 


>i 


4.1^ 


■> 


r 


-t 


I.* 


V^7 


i' 


<^ 


ttehold  "  tliç  rtlm  and  "dévastation  w 
F«deiral  troopp,  cit^  âny  olie  Wonder 


H   -<» 


marks  thfl'  trâck  of  the^* 
khe  fireâ  pf  reVeuge  anî 


\- 


170 

tion  in  the  matter,  and,  if  they  hâve  no  jurisdiction  over  the  8u6- 
ject,  itis  incontrovertiWe  that  in  the  sensé  andmeaning  of  the 
Act  there  can  be  no  State  jurisdiction  whichcan  corne  in  contact 
with  the  Federaijunsdiction  expressed  in  the.  Statute,  and,  conse- 
quently,  in  the  treaty,  and  in  the  law,  the  word  jurisdiction  must 
mean  temtonal  jurisdiction.  ïhus  •  it  is  dear  that  the  words  «  or 
of  any  such  State  "  go  used  in  the  12th  Victoria,  chap.  ]9th  were 
oTr^^'^  introduced,  and  they  were  properly  rejected  by  the 
J4th  Victoria,  chap.  6,  and  the  law  now  stands  as^  if  they  had 
never  been  introduced  at  ail. 

The  offence  charged  against  the  prisonei:  is  an  offence  committed 
within  the  jurisdiction  of  the  United  Stales,  and  falla  çlearly  within 
the  provisions  of  the  treaty  and  the  Act. 

The  warrant  charging  the  prisoner  with  having  conpiitted  a 
crime  against  the  laws  of  the  State  of  Vermont,  within  the  juris- 
diction of  the  United  ^tatesj  is  properly  stated,  and  is  necessarily 
within  my  jurisdiction.  The  jurisdiction  over  the  ofience,  that  is 
the  cnme,  is  the  State  jurisdiction  of  Vermont,  but  the  jurisdiction 

?rQ     mt"^J®°*  °^  ^^'^  ^''^^^y  '^  ^°  *^®  Fédéral  IçgislatuÉ^M  the 
U.  S.    The  offence  must  be  designated  as  against  the  «tate  of 
Vermont,  and  so  it  is  in  the  warrant.     The  objection  is,  therefore 
overruled. 

Mr.  Devlm  said  that  theprosecution  had  finished  their  case,'but 
that  if  the  defence  adduced  évidence  he  would  be  prepared  to 
oppose  it.  r    r~ 

The  voluntary  examjnation  of  the,  prisoners  wag  then  proceeded 

Lu  B.  H.  Young's  statement:^!  atn  a  citizen  of  the  Confede- 

rate  btates  of  America,  and  a  soWièr  in  their  service  ;  I  hold  and 

herewith  produce  .my  commissionla  first  Keutenant  in  the  army 

of  the  Confederate  States,  and  the  instructions  received  atthe  time 

that  commission  was  conferred  upon  me,  roserving  the  right  to  put 

in  évidence  the  further  instructions  I  hâve  recejiveà,  at  such  time 

and  m  such  manner  as  my  counse]  may  advise.     (Mr.  Young  hère 

.  put  m  his  commission  and  instructions  from  the  War  Department 

at  Richmond,  a  copy  of  which  we  bave  ^Iready  publishod  amoni^ 

the  proceedmgs  before  Mr.  Justice  Coursol.)  My  heart  is  as  opposed 

aa  most  dthers  to  measures  of  rétaliation,  but  i  hâve  suffered  so  many 

haw/^iips  and  endured  so.inatiy  privations  in  the  cause  of  liberty 

and  freèdom,  thàt  my  héârt  is  steeled  against  sympathy  for  the    " 

mvadere  wi  tippr^essors  of;my  belov«<i,:my  native  lanii.    Fresh 

from  scènes  of  devastated  firesidesandruined  villages,  and  liôteniast 

g^.^ly.,*^  •♦^g-g^JtJ^y'^^gw  and  gr^  ofJbp  nrphnn  ;  whcnî 


.     171 

retaliation  should  élumber  within  my  bosoih  and  only  need  the 
opportiuiity  to  buret  into  fiâmes.  There  are  but  few  households  in 
the  South  that  hâve  Bafiejred  no  privations,  and  endured  no  bereave- 

,  ments  in  our  great  struggle  for  the  inhérent  rights  of  our  race. 
Truly  in  this'  war  civilization  has  been  made  to  shudder,  and  démons 
to  rejoice,  in  the  backward  march  of  ail  that  is  ennobling  and  worthy 
-of  the  créatures, made  in  God's  own  image  and  after  his  ovrnlikeness. 
Whatever  was  done  at  St.  Albans,  waa  so  done  bv  the  authority 
and  order  of  my  Government.  I  bave  not  violated  the  neutrality 
laws  of  either  Canada  or  Great  Britain,  nor  was  the  expédition  to  n 
St.  Albans  set  on  foot  or^projected  in  Canada.  I  bave  left  hou^ 
friends,  luxury  and  ease  to  battle  for  à  cause  endearéd  to  me  on^ 

■  as  ttie  cause  of  right.    Disfranchised  and  drivéh  from  my  native 

■^  ^tate,  Kentucky,  I  bave  eàpoused  the  cause  of  ar  people  whose 
blood  fills  my.veiris,  and  whose  feeling  and  interest  are  identical 

J)  with  my  own.  /'Having  çsppùsed  this  cause,  I  will  never  look  back, 
but  râtàer.  than  yield,  will  pour  out  my  blood  as  a  sacrifice  at  the 
altar  of  the"  dearof  t  and  noblest  cause  that  cari  call  fdrth  th|  efforts 
oCman.^    I  hâve  faced  death  many.  times  ère  this  ;  and  should  I,\ 
coûtrary  to  ail  précèdent,  be  éxtï-àaitêd,  I  am  perfectly  wçll  AWîirs  ) 
what  my  fa  te  shajl  be.     I  can  die  as  a  son  of  the  South,  aud  th^ 
ggoày  of  ten  thousand  deaths  will  nevér'  cause  me  to  regret  what  I 

,  hâve  àone,  and  th^  part  1  bave  borne  in  this  struggle  of  rigfet  againat 
might.  I  had  bélieved  that  Canada  would  be  true  to  herpfctine 
réputation  ;  and  at  least  deal  me  the  justice  and  ri^ht  guarifltteed 

^by  the  neutrality  proclamation  of  Her-Majesty  Queen  Viétoria; 

'•    and  it  was  wlth  feelings  of  surprise,  and  wonder  that  I  behold  the 
part  her  Government  bas  taken  fflgainst  me."    AU  that  I  ask  is  that 

,  impartial  justice  shall  be  metgd  me  and  my  cotnrades;  with  the 
judiciary  I  àm  safe,  as  I  can't  but  feel  i^hat  bis  Honor  before 
whômLnowam  brought  will  give  me  right,  though  the  Heavens 
fall,  and  that  his  sensé  of  justice  ia  far  above  Goverûment  influence  ,  , 
and  the  damor  of  th'e  fearful.  T^e  flag'of  the'empire  bas  been 
an  embipm  of  protection  to  i^é  oppressôd  ao^  OHt-cast  alien  for  ^  ^ 
many  a  long  weary  year  :  and  it  wiU  nQtfail  te  give  me  that  im> 
partiaUty,  which  bas  imÂe  it  the  joy  of  the  fu^tive  for  âges  past. 

l  ■  1  have^but  done  my  dul^as  a  Confederàte  solder,  and  am  willing 
to  àbidé  the  fate  conséquent  thereupon.    Ail  the  men  with^meat^^ 
St.  Albans  were  éithef  Confederàte  officera^  Buldi«»jr«iKhl|J55r^^ 
mtay.a  tard  fought  battle-field  they  hâve  proven  their  devption  to 
Sbuthèm  righ^  and  thè  Southern  cause.,    É&à  àhouîd  we  bow  be 
called  upon  to  yield  our  lives  in  its  defence,  the  partdng  wçrds  of 
Jflou.  JiM.  Ar  Soddou;.SewetMfy  rf^iy»  for  the  Oonfcdgriitto  Sfetea»    ,^=j 
wâl  b»  venfied.    They  wère  thèse:  " Lieuteiumtj you  fo  xifon  fk'  -,    ,;^ 
fàni^rduEf  iniwion,  and  you  aiîd  your  commanèsht^l  l^  ^iilly*)?!*^     H^  , 


/ 


':j. 


I  . 


N 


?N' 


'.K 


'*S' 


.<^ 


-A.    '•-# 

m. 


>.£„v, 


t 
172 


tected."  And  I  assure  the  good  people  of  St.  Albans  that  the  day 
upon  which  I  die  will  be  one  that  will  bring  a  wail  to  the  best 
'|MBaies  in  the  Green  Mountain  State.  Mj  death  shall  be  avenged, 
ând  th^t  in  the  blood  of  Vermont  officers.  And  again  I  assert  that 
^have  â  heart  for  every  fate  ;  and  if  the  English  law  fails  to 


•^p^teot  me,  my  govemment  can  and  will  avenge  my  sacrifip©  at  the 
^^hrineof  a  cause  to  which  thousands  nobler  than^I  hâte  yieldecT 


^  leir  life's  blood.    I  am  not,  however,  fully  prepared  for  the  full 
Science  of  myself  and  of  my  command,  without  communication  witl^ 
iny  Govemnjent  at  Richmond,  which  I  am  now  well  assured  I  carf*  ■ 
«ffeot  within  thirty  day  s  from  this  time. 

Marcm  Spurr's  statemmt  : — I  am  a  native  of  Kentuc^y,  and  an 

enUated  soldier  of  the  O.S.  army,  and  my  termof  service  Kas  not  yet 

expîred.    I  owe  no  allègiance  to  the  so-called  United  Sfates,  but  to 

the  Confederate  States  of  Ainerica  ;  I  ^as  held  as  a  prisoner  of  war 

in  a  ï'ederal  prison  from  which  I  escaped  ;  afterwards  I  was  engaged 

with  other  soldiers  of  the  afore-mentioned  army  in  doing  duiy 

within  the,  Fédéral  Unes,  last  summer  at  Chicago,  111.     J  placed 

myself  under  thecommand  of  Lieut.  Young  for  the  purpose  of  assist- 

ing  in  carrying  out  instructions  from  the  Confederate  Secretary  of 

War  ;  I  wa&  in  the  States  when  the  raid  upon  St.  Albans  was  con- 

,  cocted  ;  what  I  B&y  hâve  done  at  St.  Albans  I  did  as  a  soldier  of 

the  Confederate  army,  discharging  what  I  conscientiously  believe 

the  dùty  I   owed  to  my  God  and  my  country,  and  my  fallen 

Comradçs,  md.  in  obédience  to  the  orders  of  Lieut.  Young  of  the 

said  army  ;  in.  doing  this  I  violated  no  law  of  Canada  or  Great 

Brit^n. 

W.  ff.  Hutchinson^s  statement  : — I  am  a  native  of  the  State  of  ' 
Oieoirgia,  and  owe  no  allègiance  to  what  was  at  one  time  the  United 
States  ;  I  am.  not  guilty  of  any  of  thq  charges  brought  against  me 
hère.  In  April,  1861,1  joined  the  Southern  army,  and  hâve  been  con- 
nected  with  it  up  to  the  présent  time  ;  I  hâve  violated  no  laws  of 
Oauda  or  Great  Britain.  For  the  fibt  four  yeara  of  this  présent 
unhappy  war,  the  Southern  people  Were  only  doing  their  duty  in 
repelling  an  insolent  foe,  and  protecting  themselves  against  outrage, 
injury  and  insuit  ;  the/  fought  against  heavy  odds*a»  the  muscidar 
resources  of  the  combined  world  wete  arrayed  against  them,  and 
they  hâve  overcome  great  difficultés  with  the  cheerfulness  and 
ppirit  of  a  brave  people.  Our  frienda,  neighbors  and  relatives 
hâve  been  plundered,  and  ia  many  instances  murdered;  and  itia 
the  boqMep  duty  of  every  Southern  màn  tO  protect  and  avenge  them 
in  aa  inmvidual  or  national  capacity.  Ho  civilized  people  cquld  do 
more,  "ML^o  true  patriot,  of  ^atever  clime,  could  do  lees. 
—  »9HP.  2few«'  mitemmt  :^--^t^mTï  mw^or  Kmtuisky,  a^sbldieF^ 


in. the  Confederate  States  ar^gj.    I  owe  py  allègiance  to  the  Con- 


■    ^    f 


•*    ■=■*! 


173 


t.  n 


fedei^te  Xîovemment,  and  not  to  the  Yankee  Govemment  ;  What  I 
did  at  St.  Albans  was  In  the  capacitj  of  a  Confederate  soldier,  in 
obédience  to  the  orders  of  Lieut.  Young,  a  Corfederate  oflScer.  I 
violated  no  laws  of  Great  Britain  or  Canada.  "  ' 

Charles  Moore  Swag^s  Btatement: — I  am  a  native  of  Kentucky 
and  a  Confederate  soldier,  owing  no  alle^ance  io  any  govemment. 
but  the  Confederate  Stiites  çf  America  ;  I  %as  captured  a  prisoner 
■of  warby  the  Yankee  forces  last  May,  and  efiFected  my  escape  from  my  ' 
enemies  at  Chicago,  while  on  my  way  to  prison.     I  joined  Lieutenant 
Young's  command  at  Chicago,  last  Âugust,  and  participated  in  the  ' 
St.  Albans  raid.     I  feel  it  my  duty  as  a  soldier,  tp  hsurass  and  an- 
noy  the  army  and  navy  of  the  United  States,  crippîe  and  destroy 
its  shipping  and  commerce,  captuoe  and  bum  its  îowns  and  cities, 
and  otherwise  damage,  if  possible,  a  Govemment  which  seeks  our 
destruction  ;  my  object  béing  to  remove,  in  a  manner,  tjie  seat  of 
war  to  the  heartof  the  New  England  States,  and  make  their  people\^ 
feel  Bome  of  the  horrors  of  war,  in  retaliation  for  the  ci;imes  and\ 
outrages  inâicted  on  the  weak  and  defenceless  women  and  children 
of  the  South  ;  any  acts  I  might  hâve  committed  at  St.  Albans  was 
in  the  capacity  of  a  Confederate  soldier,  acting  under  orders  of 
Lieut.  Young,  a  cpmmissioned  officer  of  the  Confederate  army-,    I 
look  to  mv  Govemment  for  the  reward  which  a  soldier  wfio  has 
performea  a  hazardous  and  dangerous  duty  bas  a  right  to  expect, 
knowing  full  well  tjjat  the  people  of  my  beloved  South  will  justify 
and  applaud  my  obnduct.    I  hâve  violated  no  laws  of  Great  Britain 
or  Canada.  / 

Mr.   Abbott  men  presented  the  following  pétition,  askbg  for 
thirty  days  délai. 


PROVINCE  OF  CANADA,      5^^,^  H.  Young  and  Marcus 
iMrietof  MofUrtal,  \      Spurr.twooftheprisonerswhose 

Lower  Canada,  to  wit:  )  extradition  is  demanded,  de- 
poeùng  on  behalf  of  themsélves  and  of  their  fellow  prisoners  in  this 
matter  being  severally  doly  swora,  do  dispose  and  say  :  That  déponents 
and  the  other  prisoners  chtu'ged  with  the  ofience  now  imdér  investi- 
gation, require  certain  testimony  which  is  necessaty  and  material 
to  ikeir  defence^and  which  they  are  unable  to  procore  in  Montréal, 
or  eren  in  Caïuula.  That  such  évidence  wul  establish  amongst 
other  thingB  that  eveiy  one  of  the  prisoners  now  m  custody  is  an 
officer  or  soldier  of  the  army  of  the  Confederate  States  of  America, 


s~         4**^  entifltw3^ 


.} 


tt;  i 


W 


.1 


ierm  of  service  has  not  expired  ;  That  this  déponent,  Bennett  H. 
Young  is,  and  was  <»i  the  luoeteentli  day  of  October  last,  an  <^oer 


^  ,.  --■■ 


M' 


ta 


■  Il 


174 


m 


m 


.>  of  the  amy  of  the  Confederate  States  of  America,  holding  the  com- 

miaion  and  rank  of  firat  lieutenant  in  tàat  army  ;  and  that  the  other 

-  of  thèse  déponents  and  the  remainder  of  the  prisonera  were  dulj  en- 

gaged  and  placed  undér  bis  commaad  for  spécial  service  under  the  / 

authoritv  to  hTn^  given  by  the  Govenunent  of  the  said  Confederate 

States,  Uirough  the  Secretaryfor  th«  War  Department  thereof  ;  That 

every  act  and  thing  wbicb  they  or  any  of  them  did  ài  ,the  nineteenth 

of  Ootober  lastat  St.  Albans,  in  lie  State  of  Vermènt,  waa  so  donc 

under  and  in  pursuance  of  the  orders  of  the  saiji  Lieutenant  Young 

given  by  him  by  virtue  of  his  insianictions  from  the  said  Government 

and  of  his  authority  in  the  m^mises  ;  That  ail  and  every  of  the 

said  acts  were  duly  authorisec  and  directed  by  the  military  autho- 

nties  of  the  said  Coirfederate  States  acting  ^nder  the  Government 

thereof,  and  \«eriB  acts  of  warfare  committed  and  performed  in  côn- 

formity  with  the  rules  and  précédents  by  which  civiliked  warfare  is 

conducted  ;  and  that  they  were  more  than  justified  by  the  acts  of 

gênerais  and  armies  in  the  service  ahd  under  tlie  ^rders  of  the 

Fédéral  Govemmenfcof  the  United  States,  and  as  rèt^ation  fpj 

fiuch  acts  ;  That  the  said  acts  of  thèse  déponents  andtof^he  other 

prîsoners  hâve  been  approved  of  by  th«  fùdd  Govem 

said  Copfederate  States,  as  being  done  in  confonnity  \ 

tions  80  received  fiom  the  said  Government,  and  bave 

nized  and  adopted  by  the  said  Government  in  autheni 

cording  to  constitutional  law  and, usage  ;  That  on  a  formLr  occasion 

when  l^fore  a  Judge  on  an  application  for  ej^traditiori,  thèse  de* 

ponents'and  the  other  prisoners  used  every  meantf  m  ^ei  power  to 

open  a  communication  with  Richmond  for  the  purpose  o^procuring 

such  évidence,  and  amongst  stepp  tending  to  th&f  efld,  Applied  by 

pétition  to  his  Excellency  the  Govemor-General  of  Canada,  prayihg 

for  such  assistance  as  might  lawfully  be  afforded  them  in  the  attompt 

to  obtam  évidence  therefrom  ^  and  aiso  made  a  siinilar  application 

to  the  Président  of  the  Unitôd  States,, which  appUcations  were 

rejected  ;  thi^t  Ijiey  also  caused  spécial  messengers  to  be  sent  to 

Richmond,  sdme  of  whom  had  been  arrested  by  Sie  Fédéral  autho^ 

nties  previousto  the  discharge  of  the  déponents  and  others  who  had  not 

then.been  heard  from.    Bu*  that  so  soon  as  they  were  discharged 

by  Judge  Coursol,  their  efforts  to  communicate  with  Richmond 

ceased,  and  the  news  of  such  dischai^doubtleôs  caused  the  autho- 

nties  there  tô  desist  from  any  attempt  to  transmit  to  déponents  the 

documei»t8  applied  for. 

Thatîmmediately  after  the  re-arrest  of  déponents  a  messenger  left 
Halifax  charged  vrtth  procurinç  from  the  Govemment  of  the  Con- 

r x?^^^  ^^^^Ji^^ ^ W'^'^.i''^^'^"?^!  ^^^  T^^*  although  déponents 
cxp«Gt«a-aaa  b<^<i»y«dutiit-we  opinitm-of  Jtnige'Coi^  WôliliJ~be 
«ustained,  they  abo  took  other  means  to  place,  themselves  in  a 


font  of  the 
instruc- 
len  recog- 
form  ac- 


,.>-,'\./,y:.. 


\ 


\ 


t  175  .■  ;  ■•-•„. 

condition  to  be  able  to  défend  themselves,  the  nature  of  which  they 
cannot  disclose  without  imperilling  their  success. 

That  déponents  hâve  since  receîved  information  and  assurances 
upon  which  they  believ«  they  can  rely,  that  the  évidence  they 
require  and  hâve  already  taken  measures  to  obtain^  can  and  will  be 
forthconiing  within  a  month  from  this  date.  That  if  they  are  not 
accorded  the  said  delay  to  enable  theiii  to  procure  the  évidence 
aecessary  for  their  defence,  such  évidence  as  they  will  be  enàbled 
to  offer  will  be  necessarilv  less  perfect  than  if  a  just  and  humane 
indulgence  were  accorded  to  them  ;  and  that  if  by  reason  of  the 
want  of  requisite  time  to  obtain  such  évidence,  their  defence  should 
be  imperfectly  established,  and  theyshould  thereupoh  be  delivered 
to  the  emissaries  of  the  Fédéral  wovernment,  such  a  proçeeding 
will  be  handing  them  over  to  ceHain  dèath  at  the  hands  of  the 
executioner,  on  the  pretence  that  «hey  committed  crimes  which  they 
never  either  committed  or  conteihplated,  and  which  they  look  upon 
with  abhorrence  ;  but,  m  reaflit^,  because  they  are  the  enemies  of 
the  Northern  Govemmwit,  e^ga^ged  m  warfare  against  them,  and 
because  that  Goveyûment  desires  tOh  wreak  vengeance  iiçon  them, 
-which  is  neither  justifiable  by  the  là%8  of  war  nor  of  any  civilized 
«ountry. 

A,n(fdpponents  ftirther  say  that  they  do  not  apply  fe^the  said 
delay  ffom  any^deBire  unduly  Jo  suspend  or  delay  the  ^||éeding8 
for  theîr  extradition,  but  for  the  soIq  and  only  reason^l^t  they 
«améstly  désire  to  place  the  \?holj»  truth  fuUy  and  ftiirly  before 
his  Honor  "the  Judge,  before  ^IjjwSi  the  applièation  for  their  extra- 
dition is  pending,  and  that  they  cannot  pro|)03e  with  confidence  to. 
do  80  within  a  less  pepod  of  time  tlian  that  which  they  hav^  men- 
tioned. 

And  déponents  have  se verally  fligned.  '        ' 

Swom  before  me  at  Montteal,^  BENNETT  H.„YpUNG, 

this  tenth  day  of  January,  I         MARCUS  SPURB.' 
eighteen  hundr^lkind  sixty-  f  i 

five.,  J     -  *  ""■"  * 

%'  J.  Smith.    ,  :*, 


Hf 


€ 


■—f- 


Mr.  Devlin — Objected  to  the  application,  contending  that  it 
was  prématuré;  tiiat  the  first  question  to  be  solved  and  âçter^ 
mmed  was,  shall  witnesses  be  examined  in  behdf  of  the  prisonerft  ?  If 
the  Court  should  raie  \s^  l^e  aflBrmaijiV/4)  tfa&t  w  "  '  ^  -  ^ 
such  an  applicatioi]^  aa  Uie  jn^ent.  /This  ap 
for  an  assent  to  t?     ""' 


"Be  invoïveiT  in  the  granting  a  defay  for  the  brin 
witnesses.    We  ask  the  coiinsel  opposite  to  go 
and  whether  they  intend  to  examine  witn^ases. 


time  for 
as  a  trai 


h 

«11 
'  i 


^•i 


f 


.'         '  .11 


\y. 


!_ 


V;4 


s^^ 


!;t 


'm  <■'■ 


iiP 


176 

'  Mr.  Abbott. — Of  course  we  intend  to  examine  witnesses. 
Mr.  Devlin. — The  first  question  I  would  wish  to  bring  up  iç'rf 
question  of  law,  and  in  order  to  do  so,  I  (îiJl  on  my  learned  friënds 
to  proceed  with  the  examination  of  their  witnesses,  if  they  hâve 
any,  or  to  cite  some  authoritj,  or  présent  some  argument  to  justify 
the  Court  in  rec^/ing  évidence  for  the  defence. 

Judge  Smith/— ïi  is  clear  what  the  nature  of  the  objection  is  ;  but 
I  cannot  give  any  opinion  upon  it\iU  I  hear  counsel  on  both  sides. 
Mr.  î>iBvlin' B&id  the  indulgence  asked  would  amount  to  a  déniai 
of  justice,  thè  accused  having  alreadjbeengrantedthirty  daysfor 
the  obtainment  of  witnesses  from  Ridimond.  If  the  prisoners  had 
av^ed  themselves  of  this  indulgence,  their  witntjsses  might  hâve 
been  hère  to-dav.  They  were  arrested  où  the  19th  October  last, 
since  when,  with  the  exception  of  a  short  time,  they  had  been  m 
custody,  having  had  sufficient  opportunity  to  bring  forward  their 
testimony  in  defence.  Th#  object  of  Ûie  application  was,  evi- 
dently  to  defeat,^^delay,  the  prosecution.    Then  the  affidavit 

'  ling  a  single  fact  which  can  be  or  codd 
khe  witnesses  whom  they  pretended  they 
,  in  spite  of  the  rule  requiring  that  when 
lefor/'âelay  to  obtain  testimony,  the  ap- 

X,  ^-  facts  he  desired  to  prove  thereby.     ^V^as 

his  Honor  prepared  to  départ  so  far  from  a  practice  hitherto 
prévalent,  and  sanction  an  application  of  a  party  who  had  the  assu- 
rance to  demand  this  favor,  and,  at  the  same  time,  studiously 
cwiceal  from  the  Court  the  facts  intended  to  be  established  ?  The 
affidavit  or  application  itself  was  defective,  and  s^ems  to  bave 
been  written  with  but  one  object,  and  that  to  abuse  an^  In- 
Bulk,  as  far  as  they  could,  the  United  States,  the  parties  who 
were  simply  asking  juâ^tice  at  our  han(^.  As  to  the  statements  that 
the  accused,  if  extradited,  would  be  sacrificed  by  the  United-States 
authorities,  we  were  bound  to  believe  that,  if  surrendered  to  them 
to-morrow,  the  raiders  would  receive  impartitd  justice  and  a  fair 
trial.  He  (Mr.  D.)  protested  against  the  introduction  into  the 
affidavit  of  statements  as  to  the  exécution  of  vengeance  upon  the 
raiders  in  the  event  of  their  renditdon  to  the  authorities.  Such 
statements  were  an  infringement  upon  the  honor  of  the  Court. 
If  the  prisoners  were  commissioned  by  the  authorities  at  Rich- 
mond,  àe  li^tter  should  hâve  taken  the  précaution  to  fumish 
them  with  the  évidence  of  it,  and  of  the  belligerency  of  tjieir 
aots.  Taking  it  for  grantedthey  were  sent  abroad  to  co;nmit 
morder  and  robbery  in  St.  Àlbans,  in  a  peaceful,  defençeless 
place,  they  ^ould  havct  been  fortified  with  aU  the  authority 
=^fr  the  8<roeâled  ^nfeden^  Stittôi  âoold  cwifer  iipon  thBntiiiT^ 
order^that  their  lives  mi^t  not  be  ezposed  to  the  conséquences  of 


abstalned  from 
be  proved  by 
were  anxiou 
an  applicatio 
plicant  must 


i_ 


/ 


.•Ji«'c('„ 


ITT 


the  crim«fl  thej  had  oommitted.  If  suoh./virere  act9  of  war,  «nd 
were  to  be  justified  on  that  ground  wé  bad  a  right.iô  say— we  are 
neutrala  determined  to  do  even-handed  justice,  show  us  jour 
aothority  to  commit  smoh  deeds  agamst  your  advereary.  Tbe 
learned  gentleman  ooncluded  by  ridiculin^  the.applicatio^|É|||^no 
diat  shoakl  not  for  a  moment  be  entertained  by  the  CoaJIj^The 
delay  asked  for,  he  added,  wouldsimplyamount  to  a  déniai  of  jus- 
tice, and  to  a  total  extinction  of  thecaae.  ( 

Mr.  Johmon  said  that  this  affidavit  prayed  for  a  delay..    Now 
two  questions  arose  :  first,  for  what  purpose  was  the  évidence 
intendedî  second,  what  were   tho  grounds  for  not   submitting 
the  évidence  that  could  be  procured  hère  ?     In  aaother  Court,  he 
had  opposed  an  application  of  this  kmd,-and  he  would  do  so  hère. 
He  contended  then,  and  contended  now,  that  in  a  preUminary 
investigation  like  this  one,  such  an  application  could  not  Ija  sought 
for,  as  it  was  entirely  outside  the  scope  of  the  treaty,  under  the 
tenns  of  which  a  magwtrate  must  commit  where  there  are  just 
grounds  for  suspicion.    This  was  ail  that  our  ma^strates  had  to  do. 
Either  thèse  men  must  be  tried  by  the  0(mrts  of  the  United  States, 
or  not  be  tried  at  ail  ;  and  to  say  that  the  treaty  contemplated  that 
offenders,  for  whoee  extradition  the  Upjted  States  made  application, 
irere  to  hâve  their  guilt  or  innocence  tried  and  probounced  upon  in 
our  Courts,  was  to  say  that  we  had  degenerated  from  a  state  of 
civilization  into  a  nation  of  savages,  unable  to  make  treaties  or  to 
enforce  them.    The  affidavit  did  not  state  what  was  the  nature  of 
the  évidence  to  procure  which  a  delay  or  thirty  days  was  prayed 
•for.     It  did  not  state  explicitly  what  the  law  demànded  it  should, 
namely  that  the  évidence  be  specified,  in  order  that  the  Court  might 
détermine  whether  that  évidence  was  of  the  proper  kind.     If  a 
Briti^h  subject  made  the  same  application,  and  made  the  same 
omission,  his  prayer  would  not  reçoive  a  moment's  conùdera^on. 
No  man  had  a  right,  aC€K>rding  to  the  English  law,  to  producé^evi- 
^    dence  before  a  magistrate  tending  to  characterize  an  act  that  he  ad- 
mitted  to  bave  donc.    He  would  refer  to  a  case  recently  tried  in 
England — that  of  the  Gerity .     That  case  was  tried  before  Chief  Jus- 
tice Cockburn,  and  Justices  Crompton,  Blackbum  and  Shee  ;  and  it 
was  held  that  on  an  application  for  extradition  the  duty  of  the  exami- 
ning  magistrate  was  purely  to  enquire  after  the  évidence  of'  a 
prima  fade  case,  and  nothing  more.    And  it  was  forther  held  that 
the  fact  of  belligerency  must  be  a  case  for  trial  before  a  Jury,  in 
the  country  against  which  the  oSence  was  committed,  and  not  for 
%    the  Mapstrate  of  a  fbreign  nation  before  whom  the  complaint  was 
~\ — made.    ThéTèaraed  ciaraBet  wScëédëff ^  read  from  an  Englislr 
law  magazine,  the  remarks  made  by  the  four  Judges  in  the  Gerity 
case,  and  to  comment  on  the  décision  of  their  liiS^hips  ;  and  pro- 


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23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

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ceeded  to  aay  that  the  décision  in  the  Gerity  case  laid  down-that' 
the  question  of  beUigerency^was  one  that  could  not  corne  before^ 
an  examining  Magistnite. 

Mr.  Bethune.—ThiB  waô  simply  a  cMài-ge  of  robbeir.    The 
parties  dressed  as  citizens,  entered  a  town  where  there  was  not 
an  armed  soldier,  and,  in  broad  daylieht,  committed  what  was  known 
as  common  rôbbery.    The  parties  admitted  that  they  were  there 
and  asserted  that  what  they  did  was  an  act  of  war.    But  the 
Court  had  no  right  to  investigate  whether  it  was  or  was  not  an  act 
of  war  ;  to  do  so  would  be  to  go  beyond  the  scope  and  meaning  of 
the  tteaty.    The  treaty  simply  contemplated  a  preUminary  exami 
nation,  and  on  &  prima  fade  case  being  made  out,  then  it  was  for 
ttie  Judge  to  commit,  and  the  matter  was  left  between  the  two 
^-  Jîovemments.     The  case  of  the  Gerity  had  been  mentioned  by  ' 
-  his  leamed  friend,  Mr.  John^n.    A  case  in  which  a  simflar  opi- 
mon  was  held  would  be  fôund  to  hâve  been  given  by  Attomey-Gie- 
neral  Cushing,  in  pages  204  and  211  of  the  «  Opinions  of  the 
Attomey's-General."    A  more  récent  case  was  that  of  Frank 
MuUer.    From  the  law  report  of  the  proceedings  against  Muller 
m  New  York,  the  commissioners  said  that  in  order  to  détermine 
whether  the  man  was  guilty  or  not,  he  must  be  sent  back  to  be  tried 
m  the  place  where  the  murder  was  cominitted.    Then  there  was 
the  case  of  the  British  brig  «  Richmond,  "  in  which,  in  a  case  of 
murder,  the  same  commissioner  m  New  York  pursued  a  similar 
Ime  of  conduct.     We  had  a  case  in  our  own  Coui-ts,  where  the 
same  principle  was  maintamed  ;  it^iras  that  of  the  runaway  blaok 
Andersen.    He  was  tried  in  Upper  Canada,  and,  as  would  be 
found  m  page  60,  tenth  volume  Common  Plea  Reports,  Chief  Jus- 
tice Draper  said  :  «  If  theré  be  a  question  of-fact  to  be  tried  I 
apprehend  he  (Andersen)  must  be  surrendered,  as  that  can  only 
be  tned  in  the  country  where  it  arose.  "    The  leamed  counsel 
concluded  by  expressmg  a  hope  that  the  Court  would  not  act  con- 
*?f?^(^  *^®,P™^^P^®«  ^^^  down  by  the  English  judges  in  the  case 

The  Court  then  adjoumed. 

Wednesday,  Jan.  11, 1865. 

The  Court  opened  at  half-past  ten, 

Mr.  Levlm  asked  if  the  prosecution  wer«  to  understand  that  his^ 
Honor,  m  deciding  upon  the  application  for  thirty  dayg'  delay, 
would  décidé  upon  the  admissibihty  of  évidence. 

Judg«  Smith^ASUiT  Mr.  Ajfebott  bas  finished  his  argument.  I 
will  be  jn  a  better  ppsif  —  "'*'*^  ..         .    o 


Mr.  ASSoti.—J.  am"p 
upon  the  instant. 


y 


% 


% 


your  Honor,  to  argue  the  questioa 


^ffir 


%' 


' 


% 


■    ■'■  „.  ■       ■  '    179   •'  ;  ■     ■        _ 

* 

Judge  Smith. — The  whole  question,  as  to  the  admissibility  of  the 
évidence,  Mr.  Devlin,  is  intimately  connected  with  the  merits  of  the 
case,  and  I  feel  it  would  be  prématuré  îq,  me,  at  this  staçe  of  the 
proceedings,  to  pronounce  an  opinion,  and  do  not  think  it  would 
be  in  the  interest  of  justice  that  I  should  do  so.  I  stated  yesterdav 
that  no  defence,  properly  so  called,  could  be  entered  into  at  ail,.  ' 
and  that  the  prisoners, could  not  go  upon  their  trial  before  me,  for  ' 
I  hâve  iio  junsdiçtion  in  that  respect.  What  I  am  botind  to  do  is 
to  see  if  tiie  prisonérs  hâve  committed  any  crime  which  ialls  within 
thescope  of  the  Extradition  Treaty,  and  that  must  dépend;  upon 
the  re»  gesU»  of  thé  alleged  offence.  Suppose  $H*t  a  màn  is 
charged  with  murder,  and  that  a  wittfess  cornes  up  aiid  says,  "  I 
saw  ybu  stiike  a  man  down  and  kill  him  on  the  street.  "  But  sup- 
pose the  man  accused  tums  round  and  says,  "  I  must  be  permitted 
to  tell  the  whole  story,  and  shew  that  the  party  whom  I  struck  down 
waa  following  me  from"  behind  with  a  hajtchet  to  kill  me,  and  that  I 
shot  hini  in  my.  own  defence.  Now,  sùpposing  such  a  case,  would 
the  offence  be  murder  ?  Not  at  ail.  A^jply,  then,  the  same  rea- 
soning  to  this  case  ;  the  prisonérs  say  that  they  were  in  St.  Albans  % 
that  they  ctHoamitted  certaip  acts  there,  but  that  they  were  justified 
in  80  domg,  as  they  acted  under  the  instructions  of  their  govern- 
ment,  a  thing  which  they  were  bound  by  their  allegiance  to  do. 
Now,  Hihese  men  say — "  we  did  thèse  aots,  but  give  us  an  oppor- 
timily  of  showing  that  we  had  ample  auihority  and  justification  for 
thèse  acts.  "  Technically  speaking,  thèse  ïnen  cannot  go  on  their 
defence  before  me.  But  if  they  show  commissions  and  prove  that  ,,** 
they  ar«  belligerents,  tlien,  possibly,  there  must  be  an  end  of  thCij*-  ** 
mâttet.^ 

Mri  Abbott. — The  distinction  which  I  am  prepared  to  establish 
is  this  : — If  it  be  really  a  case  of  conflicting  évidence,  the  fact  of 
the  crime  being  committed  being  proved,  that  is  no  case  for  a 
Magistrate  to  try  ;  it  is  not  within  his  jurisdiction  to  do  so. 

Judge  Smith. — Clearly  not  ;  it  is  none  of  my  business. 

M".  Abbott. — But  if,  on  the  other  hand,  the  prisonérs  propose 
to  shew  that  the  aot  comnûtted  does  not  consiitate  a  cnme  for 
which  extradition  could  be  demanded,  that  is  a  question  which  the 
Judge  must  investigate  and  décide.  In  doing  tms  he  does  not  try 
the  robbeiy,  but  £e  appUc&tion  of  the  treaty.  ThQ  prosecution 
should  be  content  to  Hxmt  themaelves  to  the  question  of  delay  before 
the  Court  ;  the  magnitude  of  the  questions  involved,  if  your  Honor 
is  oçlled  upon  to  décide  now  as  to  whether  the  évidence  is  mate- 
rial  or  not,  ahodd  indace  Ûi<6  prosecution  to  confine  themselves  to 
~tiie  matter  now  before  your  HoiMtr.  ~  ^^^    "^"^^    ■  ■""    ~^^ 

Judge  Smith. — ^The  question  of  the  admisùbility  of  the  évidence 
is  a  very  dilferent  thing  firom  the  relevancy  of  the  évidence.    No 


;.* 


\^ 


M 


yi 


180 


verbal  testimôny  can  be  reoeived  in  the  way  •  of  proof.  If  the  wi- 
soner  Young  had  prodaced  doctonents  at  tiie  time  he  was  asked 
what  he  hadf  to  saj — if  he  had  had  them  in  his  poasessron,  I  don't 
see  how  the-proseotttion  could  oppose  their  being  put  in.  Some- 
thing  bas  been  said  about  delay  m  this  case;  but  smoe  I  hâve  been 
conneoted  with  it  I  am  not  aware  that  there  bas  been  very  great 
dela^.  I  think  the  case  bas  been  prooeeded  witili  tua  rapidly  as 
liossible^  I  granted  my  warrant  on  the  13th  of  December  ;  the 
prisoners  were  arrested  on  the  20th  ;  tiiey  vere  brou^t  before  me 
on  the  28rd,  just  as  I  wàs  finishing  tiie  Court,  and  ^.could  not  then 
proeeed.  The  holidaya  intervened,  and  the  prisoners  came  up  on 
the  27th.  Now  it  is  the  llih  of  January,  and  seven  days  hâve 
been  occupied  en  délibéré.  In  faot  the  case  bas  gone  on  with 
great  celerity,  when  the  amount  of  labor  conneoted  with  it  is  taken 
into  considération.  As  to  thè  présent  application,  my  impression 
is  that  I  sbould  grant  delay.  I  do  not  wish  to  be  obuged  in  give 
my  reasons  for  this  opitilon  at  the  présent  time,  ànd  it  is  withm  my 
discrétion  to  hold  back  any  opinion  at  this  moment  on  the  faots. 
But  is  there  any  argument  to  be  offered  by  the  proseoution  ? 

Mr.  Bethune. — ^I  don't  \^ithdraw  the  opposition  I  made^ 
day  in  the  slightest  degree.  I  am  satisfied,  looking  ba 
whole  history  of .  this  matter,  that  ail  this  is  merely  '  ^ 
There  Is  an  application  for  a  delay  of  thirty  days,  in  or^er' 
to  Richmond,  and  for  what  ?  For  the  very  instruction!^  the  priso- 
ners said  they  received.  Your  Honor  bas  ruled  that  \;here  can  be 
no  verbaJ  proof,  therefore  the  prisoners  should  produce  the  spécifie 
orders  tiiey  received  from  Richmond.     Why  «t^  tiiey  ^;iot  produced  ? 

Mr.  Abbott. — Does  my  leamed  friend  imagine  mat  a  lieutenant 
would  carry  instructions  from  the  Secretary  at  War  on  his  person  ? 

Mr.  Devlin. — We  bave  no  power  to  control  the  action  of  tiie 
Court  in  this  matter  of  granting  delay,  but  I  protest  against  it. 

Judge  Smith. — I  hâve  not  givwi  any  judgment  as  yet,  Mr. 
Devlin.  .  * 

Mr.  Devlin  said  he  solemnly  protested  against  tMs  delay  ;  and, 
if  it  were  granted,  he  doubted  very  muck  whetiier  he  would  ever 
be  instructed  to  appear  m  this  case  again.  It  was  the  second  time 
in  the  history  of  our  Courts  that  wken  prisoners  had  voluntarily 
entered  upon  their  defence  an  applioatùm  of  this  kind  had  been 
made.  If  five  of  our  own  citizens  were  before  the  Court,  oharged 
with  the  commission  of  crime  in  ^  this  Province,  after  the  évidence 
for  the  prosecution  had  been  gone  into  would  a  delay  of  thirty  dayâ 
be  granted  ?  It  was  the  duty  <^the  counsel  for  the  prisoners,  w^en 


ve 


^eir  dients  were  brought  np^^  <  ^  .^_„,„ 

informed  theTlourt  that  t^ey  were  not  in  a  position  to  bring  fi)i1rard 
their  évidence,  that  their  witnesses  were  absent,  and  then  to  request 


«'.. 


--/ 


-i 


g 


181 


ihe  Court  not  to  call  upon  ihem  to  enter  on  their  defence  till  they 
ytexo  fidly  propMed.  This  application  for  thirty  days'  delay  vas 
made  wi^o^^  ^^^^^  being  a  tittiie  of  endenoe  to  show  that  difi- 
genoo'  had  been  nsed  to  obtain  évidence  for  tiie  defence.  There 
vas  no  précèdent  to  justi^  a  delay  of  this  description.  The  Ameri- 
can autnoritieB  cUd  not  show  a  single  case  in  mrlnch,  (m  their  side 
the  Unes,  s^ch  an  {q>plication  had  ever  been  granted  in  behalf  of  a 
fautive  chûmed  by  us  under  the  treaty.  He  doubted  if  an  appli- 
cation of  this  kind  was  ever  even  made  in  our  or  the  American 
Courts.  If  tlûs  delay  was  granted,  he  really  thought  that  the  Extra- 
dition Treaty  would,  as  far  as  Canada  was  concemed,  be  considered 
a  dead  letter. 

Jadge  Smith  thought  that  Mr.  Devlin  in  his  remarks,  regardmg 
the  Court,  had  gone  a  littie  too  far  ;  he  (the  Judge)  had  simply 
questioned  the  counsel  to  know  from  them  if  it  was  necessary  to  hear 
an  argument  of  the  case.    He  had  stated  his  reasons  why  he  did 
not  wish  to  décide  this  point  peremptorily .    He  had  given  no  reasons 
for  his  inclination  to  granjb  this.  delay,  orfor  declaringhiswish  inthe 
matter  ;  yet  Mr.  Devlin  had  attaiked  him  as  having  decided  the  case 
unadvisedly,  and,  without  he^ring  the  Court's  reasons,  had  almost 
charged  it  with  a  déniai  of  jijstico.    Now,taking  the  latter  considéra- 
tion alone,  what  déniai  of  justice  could  resuit  by  giving  the  prisoners  a 
delay  of  thijrty  days  ?  If  they  could  not  produce  any  évidence  of  the 
kind  they  wished,  where  was  the  injur^  to  the  prosecution  ?— those 
unfortunate  prisoners  would  hâve  to  be  surrendered.    But  if  they. 
should  produce  évidence  to  change  ^the  ojânion  as  to  their  liability 
to  extradition,  surely  no  one  could  complain,  if  the  testimony  be 
acoording  to  the  rules  of  law  and  justice.     Where  was  the  injury  ? 
None  possible.  The  Court  did  not'mean  to  say  that  what  thé  defence 
desired  to  produce  mightbe  bénéficiai  ;  but  the  delay  would  simply 
^ve  the  prisoners  the  means  of  saying  all*they  could  say  in  justi- 
fication ofthe  act'which  their  opponents  designated  îm  act  of  robbery, 
but  which  they  tiiemselves  contended  was  an  act  of  war.    If  they 
were  robbers  they  could  not  escape  from  the  position  of  siich,  even 
granting    the  delay.    In   order,  therefore,   to  enable  him  (the 
Judge)  to  judge  aocurately  and  correctiy  as  to  the  position  and 
quauty  of  the  acoused,  and  consequentiy  as  to  the  nature  of  the 
offence  charged,  it  was  but  fair  to  those  men  to  hear  what  they  had 
to  say.     Whether  his  opinion  would  be  borne  out  ultimately,  when 
he  came  to  assign  his  reasons,  was  another  matter. 

ifr.  B^^ne. — ^But  we  can't  withdraw  the  point  we  MÛsed  yester- 

y ,  HB  our  view  of  this  matter. 

Thé  Judge. — No  ;  but  itmay  be  reserved,  and  heard  on  the  merits 


ofthe  case.  The  grei^  argument  ofthe  prosecution  was,  "why^" 
not  thèse  men  prodwe  the  papers  rô<juired  as  évidence  in  their 


'    if 

t 


l> 


ï\ 


émm  ijii/ni  ni*M*>gViw^^^p*wi^^ 


\ 


•      ,.  182 

^efençe  before  ?''  Now,  we  knew  the  position  in  which  their  country 
wtf  placed,  and  the  difficulty  a^teniîing  a  joumey  to  Richmond. 
How  was  it  it  possible  to  get  within  even  a  reasonable  distance  of 
that  City  at  présent  ?  /The  prisoners  were  placed  under  «rreat  disad- 
vantages  in  this  resgffct,  and  it  was  the  duty  of  the  Comli  to  afford 
theœ  the  means  oÇat  least,  makmg  known  the  nature  0/  their 
defence.  Considermg  the  difficulty  and  danger  encountered  in 
reaching  Richmond,  the  delay  asked  was  not  extravagant,  and  not 
of  a  nature  todefeat  tiie  ends  of  justice,  according  to  the  Court's 
opinion.  It  18  dear  to  my  mind  that  anythmg  like  verbal  testi- 
mony  m  this  matter  will  be  insufficient. 

Mr  Abbott— W^  wiU  endeavourto  give  you  the  best  évidence, 
and  in  a^  case  we  shaU  proceed  according  to  the  rules  of  évidence. 
Andif  we  offer  évidence  admissible  under  thosp  rules,  we  expectit 
will  be  recoived.  - 

The  Judge. — Oh,  clearly. 

i^r. -4*Jott.— I  shaU  not' argue  the  question  on  its  merits, 
M  the  Court  is  disposed  to  grant  the  delay.  But  notwith- 
standing  the  st^tements  of  the  leamed  counsel,  I  maintain  that 
this  apphcation  is  by  no  means  unprecedented.     On  an  appUcation 

S^/„  °î!fî  "i  ^r"*^  (Burley's.case)  the   Court*^Vanted 
thirtv  days  delay  for  the  same  purpose  ;  and  Judge  Short,  of  Sher- 
brooke, also  lately  granted  what  heconsidered  a  suitable  delay 
for  a  similar  object.  Judge  Coursol  had  also  given  thirty  days'  delay 
m  this  caa^  for  the  same  end.    They  had  adminisj^red  jistice  in 
the  United  States,  on  occasons  like  the  présent,  when  their  passions 
wew  not  excited  as  now,  in  a  similar  manner  ;  and  there  cwild  be 
no  doubt,  many  instances  could  be  cited  in  which  the  United  States 
Courts  had  granted  delays  to  parties  désirons  of  showing  that  no 
offence  had  been  committed  under  the  Treaty.    In  the  very  case 
cited  by  the  opposite  counselyesterday,  in  which  the  plea  of  insanity 
1    «.®?u'''"^®^i**'®  ^^*>3r-Gener^'s  décision  showed  that  thi 
pleal^  been  thoroughbjr  Investigated.    Then,  again,  m  the  case 
^f  the  deserters  from  Hahfax,  whose^  extradition  from  Boston  was 
demanded—not  on  the  ground  of  their  being  deserters,  but  of 
havmg  committed  a  robbery— what  was  the  answer  ? 
i<    vr  ^«'*""^The  case  there  tumed  entirely  upon  the  word 
robbeiy.      The  men  had  stolen  the  militaiy  chest,  aud  the  Court 
held^Twas  a  larceny  and  not  a  robbery. 

MrAbbott.--l  get  my  information  not  from  any  spécial  law  report 
— tor  I  hâve  been  unable  to  discover  any— but  from  theordinary 
newspapera,  and  I  understand  that  the  extradition  was  refiised  be- 
^ause  the  deserters  crime  was  oompUcated  with  their  désertion— an 


't.ig— -      ;. — ;  —  ~""-x.  "«o  vx/ui^uvaiieu  w«a  ineir  aesertion — an 

^Wenoe  «f  a-ehsracter  not  contëmpS^dTîy  Ifiè^^aty.    Wq  aïf 

know  that  when  McKenzie' murdered  orcaused  to  be  murdered 


A',. 


188 


Colonel  Moodie,  and  fled  to  New  York,-  tho  Govemor  of  the  State 
refuBed  to  issue  his  warrant  of  arrest,  that  the  demand  for  his  ex- 
tradition mightbe  tried.  The  Attomey-Greneral  of  the  State  dien 
gave  hÎB  opinion  that  there  could  be  no  ej^^dition  in  such  a  case 
at  ail.  Though  the  treaty  had  not  then  béen  I>»|8ed,  the  State 
Judges  were  disposed  to  extradite  as  a  matter  of^côinity. 

Mr  Devlin. — -But  never  did. 

Mr  Abbott. — Many  Judges,  and  Chancellor  Kent,  held  they 
•were  bound  so  to  do.  The  only  ground  on  which  McKenzie's  extra- 
édition  wiyj  refosed  woa,  that  we  had  a  rébellion  in  the  Province. 
The  then  Attomey-General  of  tho  State  of  New  York  set  forth,  in 
an  daborate  opinion  oh  the  case,  that  there  was  no  instance  in  the 
history  of  International  law  of  an  extradition  being^granted  where 
the  fiigitive's  offence  was  complicated  with  any  crime  of  a  political 
nature.  We  know  also,  in  the  case  of  McLeod,  who  went  to  eut 
"out  the  "  Caroline,"  when  on  the  American  side  of  the  river  Nia- 
•gara,  that  though  he  had  no  written  instructions  to  justify  the  act, 
yet  in  conséquence  of  that  act  having  been  adopted  by  the  Govern- 
ment of  this  country,  the  Fédéral  authorities,'  through  their  Secre- 
tary  of  State,  acknowled^ed  it  was  a  sufficient  answertothe  charge 
■of  murder  preferred  against  Wm,  and  that  he  should  never  hâte 
been  tried  by  the  State  Court. 

Mr  Devlin. — I  admit  that.  But  the  ciroumstances  were  différent 
from  those  of  this  case. 

Mr  Abbott. — Oh,  the  circumstances  were  différent,  as  we  shall 
«how  by  évidence  we  intend  to  put  on  record.  There  was  no 
nationîd  war  at  the  tirae  of  MoLeod's  act,  and  besides,  he  held  no 
<5ommis8ion  in  the  British  service  ;  and  there  was  no  acknow- 
ledgment  by  the  United  States  of  any  ^elligerent  powers  in  Canada. 
There  are  a  dozen  pohxts  in  which  the  case  of  lieut.  Young  is 
infinitely  more  favorable  than  that  of  MoLeod.  I  merel^  mention 
thèse  faots  to  show  that  the  assertion  that  a  delay  of  the  kind  asked 
be  unprecedented,  is  éhtirely  fallacious.  I  could  produce  many 
more  mstahces  if  necessary. 

Mr  Devlin  said  the  steamer  "  Caroline  "  had  been  engaged  in 
«arrying  munitions  of  war  to  the  Canadian  rebels,  and  that  the 
party  who  attacked  her  was  speoially  jnstruoted  by  Sir  Allan  Mc- 
Nab. 

Mr''  Abbott.— l  only  referred  to  those  cases  to  establish  the 
.^neralprinciple. 

2%e  Judge. — ^I  am  disposed,  under  the  circumstances,  to  grant  tho 
delay  asked  for  ;  and  believe  it  is  best  in  every  point  of  view  to 
-affbrd  every  possible  opportunity  to  both  parties  to  bringjorww^ 


'f    !' 


anr 


%Iiàt  iqi^  benéfit  èitfier. 

Mê  Éonor,  Counsel  on  both  sides  havmg  oonsented,  remanded 
the  prisoners  for  thirty  days,  till  lOth  February  next. 


ï-^'^-^ 


184 


Friday,  lOth  Feb.,  1866. 

On  the  deimà  of  the  Président  of  the  United  States,  for  the 
extradition  of  Bennet  H. Toung,  et  ai.: 

Hon.  Mr. j  Abbott  said  that  in  conséquence  of  circumstances 
which  had  o^curred  since  the  application  for  the  80  davs'  delay  had 
been  made,  ïie  ahould  be  obliged  to  make  another  application  for 
an  extension  of  that  delay,  the  reasons  for  which  werVset  forth  in 
the  lollowing  affidavit  : 

Jjfn^ttff.  JÔMW5- and  Marcus  Spurr,  two  of  the  prisoners  whose 
extradition  ^  sowght  in  dus  matter,  being  severaUy  doly  swom 
ÎÇ?!^'^  ^y  •"??*  iinmediatelT  upon  the  gnmti/g  of  L  delay 
of  tiurty  days  awarded  to  them  by  the  Honorable  Mr.  Justice  Smith 
for  the  purpose  of  obtaining  from  Richmond,  in  the  State  of  Virginia 
To.  *      Confederate  States  of  America,  seceding  from  the  ^n 
of  States,  heretofore  known  as  the  United  States  of  America,  cer- 
tain dooumentary  évidence  material  to  their  defence  ;  thèse  dépon- 
ents and  the  other  pnsoners  in  custody  on  the  said  demand  caused 
messengers  té  be  dispatched  by  différent  routes  to  Richmond  afore- 
said,  with  directions  to  penetrate  through  the  Unes  of  iiie  said  United 
btates,  the,  parties  prosecuting  in  this  cause;  aad  to  obtain from 
•    *u      L**^-f "î^'  *^®  documents  and  évidence  already  desoribed 
m  the  affidavit  abready  fyled  in  this  cause  on  behalf  of  the  said 
pnsoners,  on  the  lOth  day  of  January  last  past.    That  the  first  of 
Je  said  messengers,  namely  Lieut»nant  S.  B.  Davis— an  oflSoerin 
the  army  of  the  Confederate  States  of  America,  who  volunteèred  to 
proceed  tp  Richmond  aforesaid,  with  despatches  specifyiiiir  the 
documen<«  reqmred,  wid  requesting  their  transmission— was  «>  dis- 
patched on  the  tenth  day  of  Januair  hist  past,  and  was  arrested  by 
pereons  ^  the  employ  of  the  said  prosecuting  parties,  the  said 
UmtedoStates  and  yas  by  them  dettoned,  on  the  pretence  that  he 
was  a  spy  of  the  said  Confederate  States;  and  was  subjected  to  a 
tnal,  before  a  tnbimal  termed  a  gênerai  court-martial,  convened 
under  the  orders  and  direction  of  the  said  prosecuting  parties  at 
Cçicmnati,  m  the  State  of  Ohio,and  comi^sed  of  theiTofficen, 
upon  ^e  charge  that  he  the  said  Lieutenant  S.  B.  Davis  whonî 
the  said  prosecutmg  parties  arraigned  before  the  said  court-martial 
under  that  name,  and  also  under  the  name  or  eUioi  of  Willouahby 
Oommmgs,  was  a  spy  within  the  meaning  of  the  laws  of  war,  and 
that  thereupon  the  said  Lieutenant  Davis,  was  by-the  said  tribunal  • 
found  Milty,  and  sentenced  to  be  hung  by  liie  nèck  untU  h»  should 
De  aead— whigh^finding  mmL  sentence  were  configaaedby.  Major 
General  Hooker,  an  officert)f  the  army  of  the  United  States  c^- 


4 

il 


:  185 

man^liog  th«  Depiurtment  \rherem  the  ewd  court-martial  was  held, 
and  w^r©  by  him  opd^rpd  to  be  camed  into  ©flfeçt  on  the  seven- 
teenlib  dftj  of  Febïuwy  instant.  The  vhole  notwithstanding)  (aa 
theie  deponentB  are  ii^onned  and  believe)  Aat  the  eéà  court-mar- 
tial and  the  aaid  Mlâ<«  General  HookSOr  well  knew  that  the  said 
Lieutenant  Davis  was  not  a  spy,  but  a.br^iyejMad  dirintereated  man, 
who  had  voluntarfly  e«K)fled  hunself  "b  ihe  rislt  of  any  contingency 
that  night  happen  to  him,  that  he  mij^t  aid  in  placing  full  évidence 
before  the  pre^Bng  judge,  reapeeting  the  matter  under  examina- 
tîonin  this  cause  ;  and  that  he  waa  not  eharged  vyith  and  did  not 
cany  any  other  dospatohes  or  information  than  auoh  as  was  exclu- 
ftveW  e<«neoted  vrià-the  proceedings  in  ihis  matter.  And  more- 
over  that  thèse  facts  vrere  ail  stated  by  lieutençjot  Davis  to  the 
said  court-martial  upon  his  trial.  That  thèse  déponents  hâve  been 
credibly  informed  and  believe  that  the  following  is  an  exact  copy  * 
of  the  gênerai  order  of  the  said  Major  General  Hooker  contaming 
the  record  of  the  said  trial  and  sentence  and  his  approval  thereof  : 

Hbadquartbbs,  NorthbenDbp't,  \ 
f^  Cincinnati,  Jan.  26.      \ 

GBNBRAL  OBDBR  NO.  4.  .    . 

Before  a  gênerai  courtdnartial  which  convened  at  Cmcinnati,. 
Ohio,  Jan.  17th,  1865,  pursuant  to  spécial  orders  Nos.  212,  260, 
and  258,  séries  of  1864,  from  thesé  headquarters,  and  of  which 
Lieut.-C!ol.  E.  L.  Webber,  88th  régiment  Ohio  Vol.  Infantry,^. 
Président,  was  arraigned  and  tried  S.  B.  Davis  alioê  WilioughM|y 
€umminga  ;  charge,  being  a  spy  ;  spécification  isf  that  said  S.  Sy^ 
Davis  alia$  Willou^by  Oummings,  a  rebel  enemy  of  the  Umted 
States,  and  being  an  officer  of  the  so-cal^d  Confederate  States  of 
America»  4idi  on  or  about  the  first  day  of  January,  1866,  seoretly 
and  m  disgulôe  enter  and  corne  withm  the  lines  <rf  the  regularly 
organized  military  forces  of  the  United  States,  and  witiiin  tiie 
States  of  Ohio  and  Miohigan,  itfid  did  then  and  there  secretiy  and 
covertly  lurk  in  thelress  of  arcitizen  as  a  «py,  and  on  or  about  the 
12th  day  of  Janûarf ,  1866,  did  attempt  to  leave  the  said  States  of 
Ohio  and  Miohigan,  irith  the  purpose  and  object  of  going  to  Bich- 
mond,  Va.,  there  to  deliver  despatches  and  information  from  certain 
parties,  whoee  names  are  nnknown,  hostile  to  the  Government  of  the 
United  States,  to  Jeflferson  Davis,  Président  of  tfce  so-called  Con- 
federate States  of  America,  but  was  iarested  as  a  spy,  on  w  about 
the  14th  day  of  January,  1866,  at  or  near  Newàrk,  withm  the  said 
^StoteofOh».    To  which  the  accused  plèaded  as  follows  : 

To  the  Bpedfication  gmlty,  except  to  the  word  '«lurk,"  and  the 
— ^iHBr^iBr»qy,**  to  the  charge  not  guilty,^^Sn^afr  andr  sen^ 
tenoe:  l^e  C<yurt,  after  mature  délibération  on  the  évidence  ad- 


T 

I    '  (I 


Ai 

JMwi 

14 


1 

•'I  'I 

'M 


^^ 


•'i^ 


Î4 


•f 


186 

t^t  ^Vi®  *^''"!!^  *"  ^^'^^^^  ''  ^^  **»«  spécifications  guilty,  the 
membew  of  the  Court  concurring  therem,  md  the  Court  do  Sere- 
fore  sentence  hmi  S.  B.  Davis  alia,  FiUoughby  Cummins,  te  bc 
hung  by  die  neck  untU  he  is  dead,  at  such  timi  and  Xf  ig  the 
commandmg  gênerai  may  diwct,  two-thirds  of  the  members  of  Se 
court  concurrmg  therein.  '  w»o  v»  mt, 

^eprocee(Mng8,finding  and  sentence  in  the  fortgoing  case  of 
wii  w'  ''^*  WilJougW  CununingB,  are  approyéd^and  oon- 
thTrt*  7?i:  •  ^r?e^*  V^^er  Fpper  guard  by  the  commander  of 
the  post  at  Cincmnafa,  Ohio  an(f  deliver^d  intofte  custody  ôf  Col. 
Lfcl;^?  n  ^.J?»"^^»  »*  Johnsoh's-Island,  who  wiU  see  that  the 
Tou^  of  Sn^iT  ""  ^'^yri'»**^  at  thafc  place,  between  the 
hours  of  ten  o'clock  a.m.  and  three  o'clock  p.m.,  on  Friday  the 
tbl  .±^  of/ebruary,  A.D  1865,  and  make  L  rJport  thereof  t^ 
the  commanding-general.     By  command  of  «"^w  w) 

^  „  ^  MAJORr-GENERAL  HOOKER. 

t.  H.  PoTTBR,  As8t.-AdjtiGeneral. 

That  the  parties  referred  te  in  the  wid  General  oiËr  aa  «  cer- 

î??t,rn -f  ?aT.''^r'  ^.^  unkno^hostile.tothe-^ovemment 
lAi^. ^"i^^  A^^l\ "^^  ^î'^  déponents, and  the  said prisoners 
jndthat  the  despatehes  and  information  therein  alsoLntion^' 

?Jlnf  n'"-®''!-,,**;  *^?  ^'®^''*  «°^«^7-    Tl'al^e  said  Lieu- 
mS^T.Jf' *^  ,^'*^'^  '"^  custody  Êy  the  said  prosecuting 
parties,  and  the  cruel  sentence  paasedupon  him  is  yetuncommuted 
llw  '^  J®PÎ?7*«  ^o\or  havé  been  informed.     Tha*  on  the 
itllt^  of  said  Januaij  the  said  prisonera  despafched  their  second   . 
ZnSi^^l^T  ^i^'^à,mà  for  the  purposes  already 

St  onthe^m^ r  *^F  ^Tr  ^''  ^T^  "^^  ti(£n^hateoever^ 
rt.«l??- J  dayof  said  Januair  the  prisoners  despatehed 

their  third  «lessenger  te  Richmond  aforesail,  and  that  thJyhave 
received  infonnation  that  he  left  Washington  for  his  first  attemn? 
L^J*^]'!^"^^  *ï.*  ^''  ^^*^«  prose^tmgpaîS^onXTlï 
smce  tiiat  penod.    That  on  the  24th  day  of  said  Janu^  Z 
same  beuig  the  dav  after  they  were  infomed  oTthe^Se  of 
to  Rtwi5*T'  *^«  fi*  prisoners  sent  off  their  fourth  messenger 
to  Richmond  aforesaid,  of  or  from  whom  they  hâve  smce  heMd 
no^g.    That  in  addition  to  tiie  said  four  m^ess^I^er^  4e  S 
pnsoners  sent  despatehes  reanesting  the  transmissiSi  of  the  évi- 
dence referred  to  m  their  saidf  affidavit,  to  the  Govermnent  of  the 
W^^M^'t^T'^?^'  ?î  Richmond  aforesaid,  by  a  person  leav! 
Z.îlTSrp-r^^?  said  month  of  Januar^,'wiU  Ae  intenîto 
I^Sl^^fe?  ?«_^h»*  ?wn  *flyw,  b«tWi*ew«id  ««lon^- 
^as  capture^  ilTl^ilmmgton,  in  the  State  of  North  CaroliSaT V 


i 


•  l 


187  ~^- 

the  armies  of  tho  saîd  proseoutinc  parties,  and  waa  bj  them  rc- 
leased  upon  parole  in  the  United  Statea,  they  being  ignorant  tljat 
he  bore  such  despatôhea  ;  and  that  he  bas  since  made  bis  way  biMsk 
to  Montréal  withoat  having  been  able  to  deliver  such  despatohes. 
That  déponents  and  Û\e  said  prisoners,  determined  also  tô  tnr  the 
effect  of  a  direct  appeal  to  the  Preûdent  of  the  said  United  States 
for  a  paâs  or  permission  to  a  messenger  to  proceed  to  Richmond 
aforesaid,  for  the  purposes  aforesaid,  and  to  that  end  despatçhed  J. 
G.  K.  Houghton,  of  Montréal  aforesaid,  Esquire,  Advocate,  to  Wash- 
ington, and  that  the  said  Mr.  Houghton  did  proceed  to  Washington 
and  personally  saw  the  Président  of  the  United  States,  and  solici- 
ted  permission  to  pass  on  -to  Richmond  Aforesaid,  for  the  purposc 
aforesaid,  but  was  refuscd,  and  was  by  the  United -States  Govern- 
ment ordered  to  loave  the  United  States,  without  attempting  to 
penetrate  through  to  Richmond  aforesaid,  which  he  was  oonsc- 
quently  obliged  to  do.  That  as  appears  by  the  foregoing  détails, 
thèse  déponents  and  the  said  prisoners  hâve  done  and  used  ail  due, 
and  in  fact  extraordinary  diligence,  to  obtain  the  passage  of  a  mes- 
senger to  Richmond  aforesaid,  for  the  purposea  mentioned  in  their 
said  affidavit,  and  in  furtherance  of  the  intent  with  vrhich  they  soli- 
cited  from  His  Honor  the  Judge  a  delay  of  thirty  daVB,  which  de- 
lay  he  so  humanely  and  justly  granted  them  ;  but  that  the  prosc- 
cuting  parties,  by  means  of  their  officiais  and  armies,  hâve  prevented 
the  delay  so  granted  from  being  made  available  in  any  respect  to 
the  prisoners,  although  déponents  and  the  prisoners  are  daily  ex* 
pectine  to  hear  news  of  some  one  or  other  of  the  messen^rs  who 
hâve  hitherto  (so  far  as  déponents  are  aware)  escapôd  from  the 
agents  of  the  prosecuting  parties^^|^àt  déponents,  on  behalf  of 
themselves  and  their  feUow  prisonwreî  respectfully  represent  that  as 
the  insùfficiency  of  the  delay  granted  to  them  îiàa  entirely  resulted 
from  the'  acts  of  the  prosecuting  parties  and  their  agents,  officers, 
«pd  soldieis  acting  under  their  orders,  they  being  in  fact  about  to 
put  to  death  an  honorable  and  gallant  officer  upon  a  false  and  de- 
grading  charge,  for  beeoming.  an  instrument  by  means  of  which 
the  intent  and  purpose  of  the  order  of  His  Honor  the  Judge  was  to 
be  carried  out  ;  the  delay  so  granted  should  be  extended  to  a  further 
period  of  thirty  days,  to  allow  to  the  prisoners  the  opportunitv  of 
sending  other  messengers  in  lieu  of  thqpe  aïrested  orobstruotea  by 
the  prosecuting  parties,  and  to  afford  tiine  to  those  who  hâve  hith- 
erto esoaped  arrest  to  make  -their  way  back  to  Canada.  And 
further  déponents  saith  not,  and  hâve  «gned. 

i     (Signed)  BENNET  H.  YOUNG, 

^ARCUS^SPURR. 

Swom  before  me  at  Montàreal,  tins  |^      .  "     • 


tenth  day  of  February,  1865. 

J.  Smith,  J.S.C. 


-.*■■ 


■i 

m 


.■•  < 


188  ,    • 

,^t  m.additkm, Mr.  ^n O.K.  Hou^hton  had^been  despatched 

Pi^^f*^"  ^^  *ï'  Ç'^î?"  *«  °^«  ft  direct  app^TÏJÎ 
^^«  for  a  paas  to  Jtow  him  to  proceed  to  Richmo^but  C 
bwn  refiued,  m  «ppears  by  the  foUowing  affidatit  :  '"""»»<» 

PROVINCE  OE  CANADA.    1       »w*«^,^  /" 

/-o,.«- Canada, /a  i^u.      j      I>ISTRICTOF  MONTREAL. 

In  the  m^ter  of  the  .demand  of  the  United  States  Of  Amerioa 
for  the  extradition  of  Bennett  H.  Yoang  et.  al. 
John  a.K.  Houghtm,  of  Montréal,  in  the  diatrict  of  Moritreal 

S'trt;tnt!:ss?'dî*'^f  /''^  "T°'  ^'^'^  -^  ^^^^i 

s  Z  «lî^         daj  of  January  Jast  paat,  at  the  written  request 

îf^T  mT*.*:  ,  «^^'^  ^<*'  **>«  purpose  mentioned  inthe  saîd 
request.  That  on  the  thirtieth  day  if  sSd  January  dei)ow>S  wrote 
and  sent  to  the  Hon.  William  H;  iward,  at  Washin^XesS^^  ^ 
Ae  ktter  herewitb  produoed  nuirked  B  which  letter^^rb^  Uni 
^ived  the  same  day  and  an  an«wer  the^eto  wâs  also  bn  ^ 
same  day  returned  to  déponent,  Trhjch  anawer  tWs  déponent  re- 

C  Jii'  JCl^^fVr^  ""^f  ^  ^^^'^'^  ^  producJS^Tarked 
refo^  i^  tiie  letter  of  déponent  and  the  documenta  therem 
W^^S^A![T  *^  r«t"rned  to  déponent  in  the  said  letter.  That 
^W  tîS^'S^"^'  ^i^  "^  *^^  JanuaÇTdepoient  ofatainr»^  in^î 
nZr  ^  Excelfency  the  Président  of  the  ^nited  States,  Td 
ujgedjyçn  hun  to  grant  the  permission  which  deponent^hjS  bèïa 
requW  to  procuré;  But  that  His  IxceUency  (^clined T ^^ 
Jueh  permiBsion  or  even  to  aUow  déponent  to  proceed  to  GeS 
Gmt  B  amy,  that-  m  aiw>lication  .for  dôcu^L  might  be  S 

Uw  Epcellençy's  words  bemg  in  speaking  of  the  said  prisoners 
tiiatlhatthey  wererebels;  that  ih^^^^n  mVÔ^UlSi 
arou^d  ;  and  thathe  did- not  s^e thi  it was aiiy  part Sf  his  buSnïï! 
to  helD  them. ,  That,howeyer,Hi8  Excellenc/rruestTdeZr 
to  enjeavour  to  see  the  Honorable  W.  H.  Sewa^  on  the  sEt 

^y  wwte  the  followmg  wordâ  :  «  Hou.  Sec.  of  State,  please  see 
t^  gJntlemaI^  who  is  tiie  gentlemaa  fiom<Janada  s^oken  of 
J^^J-     A.  Lmoohu     Jan    81,  1866."     But  that  on  pre- 
S  &5  *^**  «»d?wd^by  déponent  in  person  at  the  officrTf 
Mr.  Seirord,aceomDanïed  bya  ^uest  that  déponent  mi«ht  be 
permitted  to  seg  tW.Honowbirgentieman.  s^d  re<i3  wa! 
peremptorthr  refoaed.    That  aeponeit  th^^T  apSl  T 
Uharae  ^  Affaire»  for  HerMbst  Gracions  Majesty  «rWad^gtoil, 
Jomjietoj|eUmted  States  GbM^^ 
poiffenf  hW  been  authoiMed  to  make,  or  to  request  oÔçiaUy  the 


■Wt: 


(  ^ 


189 


honor  oC^^n  interview  with  the  Honorable  Mr.  Seward  for  depon&nt, 
'  or  to  lœoompany  déponent  tb  the  depOirttaent  of  State  to  endearer  ' 
to  vd  depment  in  proonring  an  interneii^th  Mr.  Seward, — ail  of 
whioh  reC[a^tB  were  refused.  -  That  tiim^upon  déponent  wrote  a 
letter  to  the  Honoratble  Mr.  Seward,  a  oopj  of  which  ia  herewith- 
produced,  marked  D,  and  iwaitod  a  rejdy  thereto,  in  conformité 
with  i^ooKnCiNatB^Jmt  that  no  replv  th«re^  was  sent  t»-deponent  ; 
and  that  défient  was  consequeio^y  compeUed  to  leavé'WAshington 
widiout  having  been-  able  to  é!reot  Uie  objeot  for  whioh  he  went 

there.  r       .     . 

And  déponent  nath  signed.  ^ 

(Signed)        J.  G.  K.  HOUGHTON. 

Swom  before  me  at  Montréal,  this  \ 
tenth  day  of  Fèbruary,  oae  thou- > 
sand  eight  hundfed  and  sixty-five.  ) 

(Signed")        J,  SmïtSÎ 

The  following  are  the  papers  referred  to  in  the  <foregoiDg  affi- 
davit:  - 

A.  >. 

•^      -J-^  ,,  '    Montréal,  Jan.  26, 1866. 

Mr.  J.  G.  K.  Houghton:  ' 

Dear  Sir, — You  will  will  please  procëed  to  Wat^gton  for 
the  purpoi^  bf  seeing  t^e  Président  or  ether  officiai,  and,  if  pos- 
sible, obtun  a  pass  i>érmit1ing  you  to  prooeed  to  Richmond  ;  and, 
if,  possible,  you  wul-  please  go  on  to  Richmond,  and  take  the , 
necessary  Steps  to  procure  the  necessary  évidence  to  oiyr  defence. 

(Signerf)        BENNBT  H.  YOUNG, 
Ist  lient.  P.  A.  C  S. 
^  MAROUSSPURR, 

SQUIRE  T.  TEVIS, 
:     ,.  C.  M.  SWAGER^  , 

*  '     'W.  H.  HUTCmNSON.     ^ 

(True  copy-^-J.  G.  K.  Houj^ton.)    :  * 

B. 
-     ^    Ebbitt  House,  Washington,  Î).C., 
°  .  /  80th  Jan.  1865. 

Sir, — l 'hâve  the  honor  mpst  respeetfully  to^^eùdose  for  your 
perusal  thé  follofifihg  dooumçnis  : 

Ist.  A' letter  from  Messn.  Bennett)9..^oung,  Ist  Lieutenant 
P.  A.  0.  S.  ;-.Marcua  Spurr,  Squire  T.  Tcvis,  0.  M.  Swager,  and 
JSjn.^H^Hutchinfl<)n,  now  priflonera  in  Montréal,  keld  on  anr~  " 


i!%tâoR  for  extradition  by  gle  Uidted  States,  i4  the  matter  of  ti^e 
-St.  Albansraid.  .    -  "^ 


m 


,^ 


a  f  I  '  'H 

îf  '  Al 

*  ï'  "^  'I J 

■f  y  '  l'i 
il 


r      f 


■'/' 


190  ^^ 

2nd.  Stamped  copy  of  an  affidavit  bf  Bennett  H.  Toun«T  and 
Marçus  Spurr,  two  of  the  above  named  prisoners,  ^  h  the  order 
of  the  Ju(ïge  granting  tiie  delay  of  thirty  davs  in  the  Z^àlî^Au^^ 
apphed  for  on  behalf^of  ail  thelbove  meSd^n^^  '®*^^'^' 
6TÛ.  atamped  copv  of  an  application  by  the  said  nrisoners  t^  Ha 
remanded  to  the  gaof  at  Montïïâl  until  the  ten Ka^of  P.Caï? 
.  next,  m  ^ew  of  the  above  mentioned  delay  for  the^aSduS^ 
évidence  havmg  been  granted.  «"«uction  ot 

Aa  your  Excellericy  wiU  nèrceive,  the  affidavit  enclosed  ia  th*» 
basis  ot  an  application  for  a^Selay  of  thirty  daya  in ïlvestiS! 
t,on  of  the  charge  against  the  said  pnsoLrs  V  thrpXt^f 
procunng  évidence  fromRichmond,  as  stoted  in  the  affidaS^et 
sary  and  matenal  for  ther  defence,  and  which  they  are  unabb  tt 
.  procure  m  Montréal  or  Canada.  ■    J  »re  unaoïe  to 

fJ^L  '^**^''  '«^?-« J  t?  authorizes  me  to  proceed  to  Washington 
that  ïbjer^'  "^  "^'"^'^^^^  P'^  ^  P^'««^  *^  Richmoni  S 
And  the  aim  of  thig  présent  application  is  to  soUcit  frora  or 
through  your  ExceUency  such  a  passer  letter,  or  such  recomln 
dation  to  the  Président  of  the  United  States  o^r  such  other  oSs 

I  ZflH'  "'"T"?  ^  T^y  ^  ^ *^^  "^^^^^^ ^«d  wiTh  thtend 
rw.iîn? -J  .K  'P'«*5'^^^/'Ç'"  your  ExceUency  to  thô  concIuS 
porfaonof  their  affidavit,  whei-ein  the  prisoners  dépose  t£»  tthSf 

K^'^.^!î!i^,'T?"  ^""^  '"»'"°S  tWs  application  iTtoXethl 
whole  tru  hfully  before  the  Judge  before  whom  th^  SoSinï^ 
for  extradihon  are  pending  ;  and  I  feel  confident  thatïï  3 
hke  thw,  invtolving  issues  of  life  and  death,  and  grave  and  m^!! 
tous  questions  of  international  la^  ;  one  t;o^n  wS  TheTZ^'     ' 
Stetesof  America  ^ith  their  whok  poweTa^  iXod  up^n  o^^ 
o&r««5'%rt  ''^^'"'^  '^'  senior  of  whom  is  but  asT^^ 
Sî  P  '  T''.*^^*^^'''  y°"  exceUency  wiU  not  refuse,  or  aS 
tïniL'lfA  «  ^.^^«'îr"*  ^  'ff^i  thèse  prisonera  ^'  Sr! 
tumty  for  tk  full  and  complète  exposition  of  the  farte  n,.  t^»—!-* 

to  soek  B  partial  or  «c  parte  jadgment  """"opemuttea 

I  would  idso  toge  «pon  your  liooUency  fte  &ct  Ihat,  aotin»  in 


their 


Civil  re«ula%nfl  of  the  Unîted  States.  ^miiary  or 

,  -^"Lrf  "^  ""^  humanity,  therefore»  and  relying  upon  the 
umverttl  Dractice  everywhere  prevaiKni  of  penStâg  Wm 
accused  of  vcnme  eveiy  fecility  for  obbSûng  WidenS?neSîJ 

I  humbly  refer  to  the  enclosed  documents  and  mak^Ss  S^^-'- 


^'*, 


191 


tion  for  a  pftss  or  permit  jto  proceed  to  Richmond,  and  for  ail  the 
necessary  documents,  letters  or  recommendations  nècessarj  for  the 
purpose  of  procuring  ail  the  documehtary  évidence  in  %his  case  on 
Dehalf  of  the  above  mentioned  priBoners,  whose  extradition  in  the 
matter  of  the  St.  Albans  raid  is  now  sought  for  ;  and  I  assure 
jour  Exoellency  that  I  will  strictlj  and  conscientiously  observe  / 
such  orders  or  régulations  as  may  be  ^ven  to  me  for  my  gâdancé  - 
while  upon  the  route.  ,  ,  , 

I  would.also  anxiously  solicit  the  favor  of  an  interview  with  , 
your  Excellency,  and  an  immédiate  reply,  as  hours  are  now  of?*^ 
moment.  jÊ^ 

I  hâve  the  honor  to  be,  Sir^  yôuif  Ex^Hi^cy's  içost  obedieiït 

flAVVftiTtiî 

(Signed)    ^  ,j     J.  G.  K.  HOUGHTON, 

Advocate, 
Attomey  for  the  prisonerff  whose  extradition  in  the  matter  of  the 

St.  Albans  raid  is  now  demanded. 
To  His  Excellency  W.  IL  Seward,  Secretary  of  State,  U.  S. 

(Copy.) 


C. 


iP 


«.-r 


cl   ^y 


\ 


wt#«i*EBaifa™*i>«t^'.'>  -■ 


MEMORANDUM. 

Department  of  gtate,  Washington,  ) 
Jan.  30, 1866.      j 

J.  G.  K.  Houghton,  Esq.,  advocate  and  attomey  for  the  pri- 
soners  whose  extradition  in  the  matter  of  the  St.  Albans  murders 
and  robberies  has  beet  demanded,  is  informed  that  the  Government 
of  the  United  States  can  hold  no  communication  or  correspondence 
with  him  upon  that  subject.  The  prisoners,  if  they  submit  them- 
selves  to  the  authority  of  thie  United  States,  need  no  foreign  média- 
tion. So  long  as  they  reib^  under  the  protection  of  a  foreign 
govermnent,  and  a  demand  upon  that  govemment  for  their  delivery 
to  the  United  Statos  is  pending,  communications  conceming  them 
can  be  received  only  from  that  foreign  goVerqment  through  the 
cuBtomary  channels  of  national  interoourse. 

A  copy  of  the  jpapers  submitted  by  S|r.  Houghton  hâve  been 

taken,  and  thô  ont^uds  are  herewith  remitted  to  him,  and  he  is 

ezpected  to  leave  we  United  Statos  without  orossing  the  military 

lines,  or  attemplân^  to  entor  the  scène  of  insurrection,  or  to  com- 

jpafflMite  mth  thft  msuri^ntg,       _^^   ..;.^,^.^.^  ~    ...^^ 

(Signed)  WILLIAM  H.  SEWABD. 

(Copy.) 


■/ 


'i'4- 

f'U 


H 


1 

1 

> 

1 

i 

T 

.: 

1 

ï  i 

J 

.T 


<«*-^ 


192 


I 


Room  No.  38,  Ebbitt  Honae,         ) 
Washington,  D.  0.,  January  81, 1866.  J 
To  the  Son.  W.  H.  Sewardy  Secretary  of  State,  U.S,  : 

Sir, — I  hâve  the  honor  to  acknowledée  the  receipt  of  youç  com- 
munioationmarked  "  Mémorandum,"  anddated  Department  of  State 
Washington,  January  30th,  1865,  informîng  me,  alnongst  other 
thmçs,  tiiat  the  Government  of  the  United  States  can  ^pld  no  com- 

V    mumoation  irith  me  upon  *he  subject  of  the  St.  Albans'  raid,  and 
lUsp  that  I  am  èxpected  to  leàve  the  United  States  without  crosjdng 
the  miUtaiy  Imes  or  attemptmg  to  enter  the  scène  of  insiutection 
or  to  communicate  with  the  insurgonts.  ' 

s^  I  would,  however,  most  respectfully  submit  for  your  Excellency's 
considération,  that  this  mommg,  at  about  the  hour  of  ten  o'clock 
a^.,  at  an  mterview  with  His  ExceUency  the  Président  of  the 
Umted  States,  the  Preside«t,  although  refusing  me  the  pass  or 
permit  to  proceed  to  Richinond,  for  which  I  hâve  appUed  to  your 
ExceUency,  and  then  did  apply,  referred  me  to  you,  and  gave  me  a 
card  of  recommendation  or  order,  addressed  to  the  Honorable 
Secretary  of  State,  of  which  the  following  is  a  copy  : 
"  Hon.  Secretarv  of  State  : 

"  Please  see  this  gentleman,  who  is  the  gentleman  from  Canada 
spoken  of  yesterday. 

UT  oi  .  -.Q^c»       "(Signed)         A.LINCOLN. 

^'■Jtsaaxj,  Slst,  1865." 

Previously  to  receiving  your  mémorandum,  I  presented  this  card 
to  your  ExceUency's  Secretary,  to  whom  I  was  referred  on  the 
first  occasion  of  n^  seeking  an  interview. 

That  gentleman,  however,  deolined  to  report  it  to  youruelf,  or  in 
any  way  to  fiwsilitate  an  interview. 

I  would  reroectfollr,  but  firmly,  again  ask  for  an  interview  with 
your  BxceMRcy,  and  an  opportunity  of  personaBy  urgmg  upon 
your  favorable  considération  my  apphcation  for  a  pass  to  Richmond 
for  the  purpose  of  procuring  the  necessary  and  material  évidence 
remnred  by  my  clients  ;  and  I  would  venture  to  urge  that  if  any 
techmcal  or  diplomatie  obstacle  ever  did  eidst  against  my  holding 
any  coimnunication  with  your  ExceUency  or  the  Government  of  the 
Umted  States,  this  reeommendati<m  or  order  ngned  by  th«  Chief 
Executive  offieer  most  oertiônly  waive  and  annul  it. 

I  wodd  also  remark  that  tiie  prisMiers  for  whom  I  am  ad^ira^ 
not  now  uiKler  «ie  protection  of  a  foreign  govèrtmient,  teehmeaUy 
speakmg;  but  that  they  are  held  bythe  Govemment  of  OaoiMla 
-iwige«t-te4il»  itnnriûoi»  «kf  *  Ipeatyfortfiêextisslilionof  félons, ïmï"" 
by  that  treaty  their  guUt  must  be  established  before  an  extradition 


',  «'  ■ 


193 

oan  be  made,  and  thatthe  proof  of  their  culpability  and  liability  to 
extradition  under  that  treatj,  or  their  freedom  from  its  provisions, 
oan  only  be  maintuned  by  a  fuU  exposition  of  ail  the  facts  of  the 
case,  and  Ûiat  the  object  of  mj  application  for  a  pass  is  simplj  to 
enable  .them  to  prépare  such  an  exposition.  The  case  is  a  simple 
acti<m  at  law.  According  to  the  spirit  of  that  ire&ty  then,  and  by 
law  and  justice,  the  United  States  being  the  plfûntifis,  and  the  pn- 
sonen  the  défendants,  the  légal  agents  of  the  défendants  shoold  not 
be  precluded  by  the  plaintifis  from  uiy  opportunity  of  procuring 
docmnentary  évidence  necessary  and  material  for  their  defence. 

I  would  aiso  respectfully,  but  finoly,  except  to  the  commence- 
ment of  your  ExoeUencys  mémorandum,  in  which  I  am  styled 
advocate  and  attomev  for  the  prisoners  whosé  extradition  in  the 
matter  of  the  St.  Albans  murders  and  robberies  is  hoyt  demanded, 
and  'vrould  remind  your  Excellency,  that  the  acts  with  vrhich  they 
are  charged  cannot  be  officially  termed  murders  and  robberies,  until 
they  are  so  pronounced  by  the  judicial  tribunal  before  vrhich  they 
are  now  arraigned. 

On  behalf  of  thèse  prisoners,  therefqre,  while  thanking  your 
Excellency  for  the  assurance  that  if  they  submit  themselves  to  the 
authority  of  tiie  United  States  they  need  no  foreign  médiation,  I 
renew  my  application  for  a  pass  to  Richmond  for  the  purpose  of 
obtaining  that  évidence  which  is  necessary  and  material  for  their 
defence  ;  and  as  hours  are  now  of  conséquence,  I  shall  assume  that 
a  foilure  to  receive  tiie  necessary  pass  or  documents  bv  four  o'clock 
p.m.  to-morrow,  is  of  itself  a  second  distinct  refusai  to  this  my  second 
written  application  to  your  Excellency  for  that  purpose,  and  in  that 
event  shall  forthwith  leave  Washington  en  route  for  Montréal. 
I  hâve  the  honor  to  be.  Sir, 

Your  Excellency 's  most  obedient  servant, 

(Signed)         X  G.  K.  HOUGHTON, 

Advocate, 
(Attomey  for  prisoners  whose  extradition  in  the  matter  of  the  St. 
Albans  raid  bas  been  demanded). 
[Copy.] 

The  Em.  Mr.  Abbott  then  stated  that  on  thèse  affidavits  it  was 
snbmitted  that  the  prisoners  had  done  everv  thing  in  their  power 
to  oany  ont  the  objeot  for  which  delay  had  been  granted  them, 
and  that  such  delay  should  be  extended  for  a  furâier  period  of 
tlûrinf  days. 

Jar.  JoAiMon,  ^.(7.,  rose  to  oppose  the  application,  oontendmg 
that  it  waa  a  mère  question  whetherour  laws  were  sufficient  to  ^ve 
^E^terthe  treaty  w^afiMFMgiyggei.  .  K.tyr»nlicatioo  coalA 

Viâmes,  and  be  as  perfeotly 


be  made  now,  it  ooold  be.  made 


1;l 


i 


11 


i 


'!  1| 


I, 


%4 


V 


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r 


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m\ 


I  '''^F' 


iâ      )■  i 


194 

effectuai  the  hundredth  time.  The  prisonere  were  reaiating  the  ap- 
pliostion  that  the  investigation  should  proceed,  and  complaining  that 
;  hifl  Honor  did  not  enforce  a  jurisdiction  he  did  not  possess.  The 
prisoners  might  oppose  their  trial  for  want  of  such  évidence  in  their 
own  country,  but  not  hère.  It  had  been  évident  from  the  firet  that 
the  production  of  the  évidence  would  be  denied.  Mr.  Seward  said 
m  eflfect  :  "  We  will  not  fumish  you  with  évidence  to  élude  trial 
but  yoor  sh^all  hâve  it  when  you  are  placed  on  trial."  And  ihai 
ma  no  doubt  a  correct  view  of  the  law  with  regawl  to  the  duty  of 
the  Amencan  govemment. 

Mr.  Devlin  followed,  saying  that  when  the  apphcation  for  delay 
was  granted  on  the  lOth  of  January,  he  had  sud  that  on  the  ex-  ' 
pnration  of  thirty  days  they  would  be  prepared  with  another.     If 
thiB  apphcation  waa  granted,  the  ingenuity  of  the  Counsel  for  the 
defence  would,  at  the  end  of  the  thirty  days,  fumish  them  wiA 
another  pretext.     They  had  had  sinoe  the  19th  of  October  to  pré- 
pare for  defence.     Could  they,  after  this  indulgence,  msist  on  ' 
another  applhcation  ?   He  understood  that  delay  had  been  granted 
to  the  prisoners  on  the  understandmg  that  when  the  dehiy  liad  ex- 
pired  they  should  proceed  with  their  defence,  in  aocordance  with 
the  judgment  of  the  Court  on  the  lOth  Jimuary.     He  trusted  it 
would  not  hfi  miapended  on  account  of  Mr.  Houghton's  being  re- 
fused  to  be  allowed  to  proceed  to  Richmond.     Waa  it  the  faSt  of 
the  Court  ?    The  want  of  documents  frôm  Richmond  was  immate- 
nal,  as  the  prisoners  were  not  going  to  be  tried,  but  were  only  put 
upon  a  prehminary  investigation.     Even  supposing  the  offence  had 
been  comnutted  m  this  Province,  the  Court  would  not  hâve  granted 
the  delays  which  it  had  ahready  done  with  so  much  leniency  toward» 
the  pnsoners,  who  relied  more  on  the  ingenuity  of  their  Counsel 
than  the  goodness  6f  their  cause.    If  the  apphcation  was  granted 
many  would  corne  to  the  conclusion  that  the  proceedmgs  would' 
never  amve  at  that  stage  when  investigation  would  be  permitted 
lû  conclusion,  he  would  say  that  if  tiie  Counsel  for  the  defence 
maqaged  to  get  anotiier  delay  they  would  hâve  done  tiieir  part 
towards  the  abrogation  of  the  extawlition  ta-eaty  ;  and  he  asked  his 
Honor  to  refuse  the  application. 

Mr.  Bethum  said,  that  since  the  time  of  the  first  application 
the  case  of  Buriey  had  been  decidéd  by  four  Judges,  adopting  the 
View  that  questions,  such  as  the  prisoners  desired  to  raise,  oouM 
only  be  tned  in  the  United  States  when  they  were  put  upon  their 
tiial.  He  apprehended  his  Honor  did  pot  pledge  hunself  lÀen  he 
ganted  the  flïBt  appHcation  fbr  delay,  to  gratot  aaother  if  that 
ftuôd;     When  the  former  appUoaâon  was  œade,  there  was  some 

He  then  went  aa  to  review  the  eflforts  made  by  the  prisoners  on 


^  ;;:f 


-•'l''î  ', 

S';'    ?   ' 


196 


UÛ8  behalf.  A  direct  application  had  been  made  to  the  U.  S. 
Govenmient,  and  refased,  and  the  ports  of  the  Confederacj  were 
Uockaded.  If  his  Honor  granted  the  application,  the  resuit  ^otdd 
be  A  mete  delay  of  thirty  days.  The  tJ.  S.  Grovemment  had  said 
in  realitj,  When  you  put  jrourselves  within  our  jurisdiction,  you 
shall  hâve  the  évidence  you  require.  Could  his  Honor  présume 
the  prisoners  wdhld  be  unfairly  dealt  with  ?  I«  the  case  of  the 
Sft¥ttnnah,  the  prisoners  had  not  been  convicted,  as  no  verdict  was 
retomed,  because  the  jury  were  divided.  In  conclusion,  he  àgain 
urged  that  delay  would  be  ineffectuai,  and  should  not  be  granted. 

The  Hon.  Mr.  Abbott  said,  that  the  affidavit  stated  that  the 
prisoners  had  reason  to  believe  that  some  of  those  who  had  been 
sent  might  yet  be  successfiil  in  rçaohing  Biohàiond,  and  asked 
addition^  tiâe  to  send  others.  He  then  went  on  to  réfute  the 
propoffltiôns  of  the  leamed  gentlemen  who  had  preceded  him,  which 
he  argued  were  threefold,  namely,  that  the  |)n8oners  were  not  en- 
titled  to  any  investigation  as  to  their  guilt  ;  that  this  being  the  fact, 
there  ought  to  hâve  been  no  delay  ;  and  thiat  fîirther  delay  could 
be  of  no  use,  sinoe  the  évidence  required  could  not  be  procured> 
The  Court,  he  stùd,  ought  to  be  put  in  possession  of  the  whole  facts 
of  the  case,  before  it  could  décide  if  the  ofience  was  dne  which 
came  under  the  extradition  treaty.  The  fact  was  not  denied  that 
the  prisoners  made  an  attack  upon  the  town  of  St.  Albans,  and 
partially  sacked  and  set  it  on  fire  ;  but  the  additional  facts  which 
they  desired  to  prove^  namely,  that  they  were  Confederate  soldiers, 
aetmg  uùder  a  duly  commissioned  officer,  authorized  by^  their 
govemment,  through  its  agents;  were  denied.  They  contended 
they  could  show  t£at  they  were  foreigners  quoad  the  people  of 
the  Fédéral  States  ;  owing  their  alle^ance  to  a  nation  at  war  with 
the  Fédéral  States ;— soldiers  of  tbftt  cation;  and  acting  under 
the  orders  of  the  constituted  authorities  of  that  nation.  Sup- 
posing  thèse  facts  to  be  proved,  would  they  not  conelusively  show 
that  âere  had  been  no  offence  within  tbe  meamng  of  the  Ashburton 
Treaty,  and  therefore,  that  the  TreaW  and  the  statutes  based  upon 
it,  did  not  apply  to  i^  case  at  ail  f  It  was  impossible  to  deny 
tliâff  ;  and  his  Jeamed  friend  would  not  contend  they  ought  to  be 
extradited,  if  the  allégation^  they  made  were  true. 

Mr.  Bethune  raid  tbat  yttA  a  question  the  United  States  had  a 
ri^t  to  tiy,  and  that  it  could  hâve  no  effeot  hère. 

Mm.  Mr.  Abbdtt  sdid,  he  eertainfy  ^d  not  expect  to  hear  \m 
leaimed  finénd  «ssidM  such  a  position.  It  would  place  the  Judge 
iik  ièhe  pontioii  df  a  miere  mittflteriàl  offiœi^  ;  entirely  deprive  hmt 
of  aHjiidid«l^aoréti<mj;  and  rendér  tfae  Mmitatioii  of  the  right  6t_ 


jfMmi&gtiJÊikai&^S^^  précise  deserip- 

tioir«lf  the  orkaes  iot  which  ii  tA^t  be  deduâided, — ^prbetioally  a 


/>. 


"'M 


H: 
) 


•1 


'  A 


■s-  -«H 


! 


f 


'>  M-*''; 


l 


196 


^' 


dead  letter.    Every  gênerai  in  the  Confederate  armieg,  who  took 
refuge  hère,  could  be  extradited  as  a  murderer.    Sùch  a  doctrine 
he  ventured  to  say,  was  entirely  unsustained  either  by  principle  or 
précèdent,  by  the  treaty  itself,  or  by  the  mode  in  which  it  had  bèen 
camed  ont.    And  if  the  statements  of  the  prisoners  were  true"^ 
and  were  proved,  their  extradition  would  be  revolting  to  the  sensé  '  ^ 
of  rustice  of  the  civilized  world.  ? 

The  presumption  of  a  fair  trial  was  one  which  we  were  certainly 
bound  to  recognize,  and  did  recognize  in  an  eminent  degree  in  the 
Courts  of  the  United  States,  when  the  passions  of  the  people  were 
not  aroused  ;  but  it  was  a  mockery  of  the  most  cruel  kind  to  talk  of 
such  a  tnal  m  the  case  of  |hese  men.    They  would  be  placed  before 
a  Court  and  jury  personaUy  hostile  to  thpm  ;  oomposed  of  enemies^ 
u^amed  agamst  them  to  an  unprecedented  degree  by  the  virulence 
of  tiie  struggle  between  the  two  sections.    The  fkir  trial  they  would 
probably  get  would  be  such  a  trial  as  lieut.  Davis  got,  who  was 
under  sentence  of  death,  me^ly  for  asking  for  évidence  for  them  ; 
>.  and  the  s^venty  of  his  treatment  for  a  minor  oflFence,  shewed  what 
.    they  might  expect  who  had  sacked  and  bumed  a  Northern  town 
Cr  they  would  get  such  a  trial  as  the  crews  of  the  privateers  and 
men  of  war  of  the  Confederate  States  got,  who  in  the  face  of  their 
recogmtion  as  lawful  belUgerents  by  the  civilized  worid,  and  by  the 
clearest  prmciples  of  international  law,were  put  upon  their  tnal  as 
V    pirates—and  were  so  declared  to  be  from  the  Bench.    And  though 
the  crew  of  the  Savannah  had  escaped  conviction  notwithstanding 
the  Judge  s  charge,  m  conséquence  of  a  diflFerence  of  opinion  amoni 
*ûe  jnry,  otiiers  had  actually  been  convicted  as  pirates. 

If  the  évidence  required  was  material,  the  Judge  had  acted  wisely 
and  hunumelv  in  granting  delay.    And  now  that  a  further  delay 
was  asked,  because  the  first  had  proved  insufficient^those  who 
resisted  the  apphcation  were  those,  who  by  tiieir  own  acte  had  reh- 
dered  furth^  delay  necessaty.    Why  did  the  prisoners  want  delay  ? 
Because  they  were  refused  by  the  prosecutors  a  pass  for  one  mes- 
senger;  because  the  prosecutors  had  hanged  or  were  abouttohang 
another,  and  because  their  précautions  were  so  carefully  taken  to 
prevent  communication  that  the  others  had  not  been  successful 
Such  an  objection  from  them  was  a  violation  of  the  aimplest  raies 
of  justice,  and  should  receive  no  weight  from  a  Court  adminiater- 
mg  justice  by  those  rules. 
Mr.  Laflamme,  Q.C.,  tod  Mr.  Kerr  followed  on  the  same  aide. 
His  Honor  Judge  Smith  said,  that  in  granting  the  former  appU- 
cabon  for  delay  he  had  carefaUy  abstained  from  giving  an  opinion 
as  to  the  materiality  of  the  évidence  proposed  to  be  oifered  ;  and 


.had 


that 


-_ ^    --    w— w    'V..WUVV    |rau|nwou    IPU  UV  OU 

B0t4&4^hfe^)eét^adm^ed^mj^t)Uigati(Hi^^»mt 
had  been  asked  for,  and  had  been  awarded.    So  m 


^ëdetey 
précèdent  or 


V. 


197 


argument  could,  therefore,  be  drawa  fifoin  that,  in  favpr  of  the  pré- 
sent applioation.  But  the  argument  had  taken  snch  a  toinn  that  hé 
now  felt  called  upon  to  intimate,  at  least  in  gênerai  terras,  what  hi» 
^ew8  upon  it  were.  He  certainly  could  not  a^Lmit  liiat  his  fonc- 
tions were  purely  ministerial,  and  that  upon  certûn  affidavits  or 
dépositions  bemelaid  before  him,  he  was  bound  to  commit  for  extra- 
dition. He  had  the  right,  and  it  was  his  duty,  to  hear  ail  that  waa 
to  be  swd  on  both  sides,  and  to  judge  wheûier  reasonable  cause 
existed  for  believing  that  one  of  the  ônmes  specified  in  the  Ashbur- 
ton  treaty  had  been  committed,  and  that  the  prisoners  yere  the 
persons  who  had  committed  it.  He  referred  to  the  familiar  illus- 
tration he  had  before  used  of  a  person  killing  another  and  being 
charged  with  murder — if  it  was  shevm  that  such  a  person  hadkilled 
the  deceased  in  self-defence,  it  would  be  impossible  for  him  tPorder 
his  extradition.  So  also  in  the  case  of  a  woman  killing  a  man  in 
defepce  of  her  chastity.  He  would  not  be  satisfied  with  Hie  évi- 
dence that  she  had  taken  life — if  évidence  was  also  producéd  to 
shew  that  the  cause  for  which  she  did  so,  justified  it  ;  or  rather 
took  away  from  the  act  the  chamteristio  of  the  crime  of  murder. 
This  was  his  opanion,  and  he  "could  not  feel  himself  justified  in 
departing  from  it,  whatever  may  hâve  been  the  nature  of  any 
récent  décision  upon  the  subject.  So  it  would  be  in  the  présent 
case  also,  if  by  évidence  placed  before  him  the  acts  committed  by 
the  prisoners  were  withdrawn  from  the  purview  of  ordinary  munici- 
pal law,  and  shewn  to  be  properly  liable  to  be  judged  by  the  prin- 
ciples  of  international  law  alone.  The  treaty  of  extradition  was 
intended  to  meet  cases  of  ordinary  crime-^M)f  the  nature  specified 
m  it,  not  offences  committed  against  each  other  by  belligerents, 
recognized  by  Great  Britain  as  being  engaged  in  warfare.  This 
was  the  doctrine  evidently  held  by  idl  the  English  judges  m  the 
Gerity  case.  The  évidence  of  the  actr  donc  in  that  case  was  con- 
clu8ive;^while  the  évidence  ot  any  belligerent  character  in  the 
assailants  was  of  the  feeblest  character,  consisting  merely  in  a  state- 
ment  that  they  acted  on  behalf  of  the  Confederate  States,  which,  it 
waa  asserted,  was  équivalent  to  hoisting  the  Confederate  flag  ;  and 
it  was  tw  that  reason  that  the  Judges  declared  that  they  could  not 
say  that  the  ma^trate  had  not  sufficient  grounds  for  committing 
them.  But  if  thev  had  been  prepared  with  proof  of  their  authority 
— if  they  had  produoed  their  commission  from  the  Confederate  Gov- 
ernment ;  it  was  plain  from  the  language  o^  tiie  Judges  that  their 
conclusion  upon  Uiat  point  would  hâve  ibeen  cÛfferent.  But  the 
affidavits  produoed  do  not  state  with  preQitdoi)  what  was  the  exact 
joatuiAc^.tbe  évidence  tobe  adduced  îvaBdh&waa^^&ertfore^  aaiJl>le 


to  jud^  whether  or  no  that  évidence,  if  obtûned,  would  be  material 
to  the  issue.    As  to  the  other  branch  of  the  argument,  it  should  be 


■Ùf- 


k 


n. 


'â 


t 


v 


II 


^iSmy*ftyj^ft-^i^iWiîfi'     •,-iti\  tilMr^iltfr   ifyJi,  ttJ\S>-    i  «^J-     «tô^i  <■  .v'^-tC^  "-^^^y^ 


ïrt    ^f^U^f^i^ 


i'-iï; 


f  \ 


198 

remembered  that  ^  United  States  were  anhappUy  engaged  m  a 
^ar  of  ffgjatac  proportions,  and  that  it  appearoï^to  le  aSrtof  aÎ 
§îf?«  t^r^*^  be  ejguer  the  oapitîTcitjr  of  the  cSSderotî 

f^^lT  ï*!'»^  "  P^'^^"'  ^*  '^^^  P™'»»^  impossible  to  X 
this  State  of  things,  and  in  anj  case  it  was  aiatter  over  wWch  he 

jf\    TTfu""?  r^ï'.«»d  ^W^h  oo«ld  not  afffect  his  decSon 
If  he  held  that  tt^Vaction  of  the  Fédéral  Govenunent  inTrî 
venting  access  to  R«hmand  should  ei^titie  the  prisoner»  to  forKr 
delay-he  should  yirtoally  hold  that  the  investigation  coZ^t 
be  proeeeded  with  till  the  war  tenrjinated.    HeS,  th^tC 
refiwe  the  apidication  for  ftirther  delaj.  '     ""«^reiore, 

It  was  then  aj^ed  that  the  examination  of  the  witnesses  should 

EVIDENCE  FOR  THE  DEFENCE. 

Jokn  a  K.  HougMon,  of  Montréal,  AdvilT!!:S:n"^'e'^'V 
fiftti  of  Januaiy  last,  I  was  engaged  to  proceed  to  Washington  to 

t  t^r^Zt  ^''^'''^  ^  ^^*^  ^  ^---*«  -^«^ 

I  arriVed  in  Washington  on  Saturday  mommg,  and  imme- 
diately  attempted  to  obtain  an  interview Vith  the  îre^donTut 
did  not  succeed  until  the  thirfy-first  of  Jaiiuaiy,  whTi  W 
an  mternew  inth  iho  P«sident,''and  askedXT'pT  to  go  to 

President  refased  to  give  me  a  pass.  I  used  every  effort  to  bduoe 
tlxe  Président  to  give  me  this  pass  ;  he  said  «  No,l  wiU  not  ^ese 
men  are  rebels,  tiiey  go  eutting  and  slashing  aro^ndTand  I  dfnot 

t^  I  ;  T  *^*™  '"«®<*  "'y  ^^^^^^  «Pon  the  Président,  and 
findmg^at  I  was  unable  to  sucoeed,  I  asked  for  a3to  iïïo 

^^f^mÈ^l'^r^^^'  "^.i^-  thence  to  foS*:S^ 
sen^r  to  Biolunond  to  procure  évidence  ;  the  Président  refosed 
lendeavored  to  influence  fen  again,  when  he  md^^^elT^^ 
a^cretary  of  Stato-  and  distinc^Uftised  to  give  it SseT  Im 
mClT^^''''  ^î  f^Jr^^ry  of  Steto,  the  Henorawï 
Mr  Seward.  The  purport  of  this  éorrespondence  is  correcfly  shown 
Ï^J!^r^K7P™'^"'*?^*«^y*®<^^*y««t«rday.  SeWdS 
I  was  to  obtain  was  .documentary.    The  princi^  instoS  S 

^vemme^^of^tbrCoBfederafe  Smm  irecbgnizmg  what  a  known 

aa  ^e  St.  Albans  raid  that  is  the  acte  of  theSpririoIerê 
Orosi^atmned  under  réserve.  -1  was  employed  by  the  prisoners 


986 

aot 

she 

ad 

0 

to 

)»-                J 

d. 

be 

Id 

ie 

m 

se 

of 

le 

\ 

n 

> 

•s 

• 

■■  .      ' 

^';,*:',;;M..;V 

199 

Uffough  their  agents,  by  a  letter  which  I  fyled  with  mj  affidavit 
jesteraaj.  I  hâve  not  penonally  had  any  conrersaiàon  with  the 
priatmera.  I  was  never  mformed  by  the  pmoners,  ihràagh  their 
a^ratfl,  or  by  any  one,  that  Président  Davis  had  refused  to  recos- 
nuse  the  St.  Albans  nûd,  and  further,  I  say  not,  and  hâve  n^ea. 
(Signed)  J.  G.  K.  HOUGHTON. 

WîUiam  W.  Cleary,  oî  Richmond. — I  am  an  Attomey  and 
Oounsellor-at^Law.  I  hâve  occupied  ipyself  lately  in  endeavouring 
to  procure  the  passage  of  a  messenger  to  Richmond  on  behalf  of 
the  prisoners.  One  Lient.  Samuel  B.  Davis  was  dispatched  on  the 
lOth  of  January  last  from  Toronto  ;  he  carried ,ihrough  a.written 
paper  to  the  Confederate  govemment,  asking  that  the  authority  for 
tiie  St.  Albans  nûd  should  be  sent  to  Montréal  before  the  tenth  of 
this  month  ;  the  précise  document  required  was  any  gênerai  order 
that  might  hâve  issued  authorizing  the  St.  Albans  raid.  On  the 
14th  01  January  last,  anothejr  gentleman  was  sent,  carrying  the 
same.request,  and  the  same  paper.  On  the  15th,  a  third  messen- 
ger waa  sent  for  that  purpose  ;  and  on  the  22nd  or  23rd  January 
last,  we  heard  that  said  lieutenant  Davis  had  been  captured,  «m. 
therenpon  another  messenger  was  dispatched  to  Richmond  for  the^ 
same  purpose.  No  intelligence  has  been  received^of  any  of  them 
having  suoceeded  in  reachmg  Richmond,  or  as  to  their  fate,  except 
Davis^  Davis  had  previously  passed  safely  through  the  Fédéral 
lines. 

Otoèi-examined  under  reserve  of  objection». 

Question. — What  are  the  names  and  places  of  abode  and  occu- 
pation of  the  three  'messengërs  other  tmui  the  said  Davis,  whom 
you  assert  were  dispatched  to  Richmond  ? 

Obiected  by  Mr.  Abbott  on  the  grounds — Ist,  that  an  aûswer 
woula  defeat  the  object  of  their  bemg  sent  ;  2nd,  would  imperil 
their  lives;  3rd,  that  their  names  and  abode  were  immaterial 
OlHections  maintained. 

The  witness  was  then  ordered  to  stand  down  for  the  présent. 

William  L.  T.  Priée.— ^ar  the  last  two  years  I  hâve  been  a 
soldier  in  the  Confederate  service.  At  the  %ie  I  was  captured, 
I  belonged  to  General  Morgan's  command.  I  know  Beimet  H. 
Toung,  one  of  tiie  prisoners.  I  hâve  known  hifai  as  far  back  as  my 
memoty  extends.  He  is  a  native  of  Jessamine  county,  State  of 
Kentuol^,  of  which  I  am  also  a  native.  I  did  not  belong  to  tiie 
same  command  as  Toung  ;  but  I  met  him  in  the  service.    He  was 

Morgan'0  commande  The  date  offlpmeeting  wi4^  NftO''^''^  P'^' 
viens  to  my  joining  that  command.  Iwas  one  of  the  so^rs  under 
'General  Morgan  during-his  last  raid  m  Kentucky.    The  advanoed 


f 


''      A. 


.  M 

2<  '•1  '.' 


I      ! 


M 


r^ 


.  -^£kskèu  Mùfè&d 


(■»i4^«»*«,»«jV'««*-tV(B^^i*+-»j.-*     ■W9VNM»-' **-.  '«."r-W&r/^l**,    -nisrîStV^îîJ 


-V" 


!  ':i 


.200 

guwrdB  jere  dreÉeed  in  oitûens  olothingr,  ând  8o  wew  Morgan»» 
oommand  always  dwewd,  except  some  Yankee  garments  and  5ver- 
coate.  Bcnnett  H.  Young  first  raised  the  (ënfederatTaTt 
Jeeaamine  County-that  is;  he  waa  the  firet  pewon  that  raiwfthe 
ConfederateflagtheretMatlknowof.  ""«wraifleatùe 

Orott^amined—IhAYe  b^en  in  Canada  six  weeks.    I ptopped 
at  a  pnvate  boardmg  houae  m  London,  Canada  West.  I  waa  nèVer 
m  Canada  before,  or  m  the  State  of  Vennont.    I  know  also  Mr 
leaws,  who  cornes  from  Jessamiae  connty  also.    l'hare  heard  of 
^«ite  J  ^r  "°*  ÎT  »«"»«*;H-  Young  for  tweniy monthS 

Colonel  Cluke,  m  Ae  umfonn  used  by  Morgan'a  command.  The 
overcoate  wom  by  ihe  command  of  Morgan,  mentioned  in  my  exaS 
nataon  in  chiefwore  Yankee  overcoate.  Morgan's  command  i^nerally 
wèartheclothesofcitizens.     They  are  gentlemen  K«'»»™"7 

^Mertûw.— Did  Morgan's  command  carry  on  raids  by  going  into 
towns  by  twos  M  threes,  règistering  themselves  at  Ëotels  mider 
false  names,  and  oanying  only,  aa  arms,  concealed  weapons  ? 

.commTd'!'  "'*      ''''  **"**  '*''*'  "^  '"«"'*'  P^^y  «f  ^^^ 

(Signed)        WILLIAM  L.  PRICE. 

Sènry  W.  Allen.— I  am  aged  nineteen.    I  was  first  nnder  the 
command  of  General  Buford;  afterwards  in  the  14th  KentacW 
cavaliy.    I  was  also  engaged  bb  a  clerk  in  the  Adjutant-General's 
office      l  know  two  of  the  prisoners,  namely,  Marc^  W 
^d  Bennett  H.  Young.    I  knew  them.as  soldiez  in  le  C 
federate  ara^;   they  belonged  toth/ State  of  Kentucky     I 
never  saw  Yoi^ng  m  the  army.    I  saw  ihim  m  prison,  as  a  Di4ner 
of  war.  ^  They  were  in  the  "Sth  KentuW  caVX  '  1  hST^rî 
sonaUy  «mt  Ôarpus  Spurr  was  4n  thatUgiment    I  aTerteffi 
when  m  prison,  that  Vqung  belonged  to  Aat  rerim^??The 
pnsoners  were  disWbuted  in  the  pSon  accordin^ Seir  reri! 
mente  and  compames  when  I  met  Young  there,  md  he  was  classilk 
as  belongmgto  that  régiment.  ,  ^u  «e  was  cjaseii^ 

Oro»9-t^aminfd.—l  now  réside  in  the  qky  of  Toronto,  where  I 
^Tehvedforaboutamonth.  I  camé  toïÏMida  orthe' toÏTof 
December  last.  I  saw  said  Benûett  H.  Young  and  MMouTsnuîr 
for  the  last  time  in  the  fall  of  J868,  at  cTmp  DouX^?b^ 
^eyeecaped  from  there  I  âm  not  aware  Aaf  tîiy S^e^ïcl' 
adathen.    Ihave  heard  that  the  said  Young  was  in  Toronto^ 


w 

fedei 
Hutc 

ary, 
what 
Huto 
Conf 
some 
wasf 
an  01 
The] 
Huto 
Mum 
secre 
with 
office 
frequ 
It  u 
'--^cog 
nevei 
tures 
"A,.  S 
and 
beliei 

a 

Jqne 

.  Phxyi 

since 

^  Tear 

and  ' 

aboài 

The^ 

for  U 

anyc 

SIX  m 

'  aboul 

stayi] 

Mr. 

YouB 

Mont 

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and] 

nions 


aadl 
St.  i 


I?; 


(Signed)        H.  W.  ALLEN. 


V-J«i 


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) 


WUXiam  Pope  WcUlaee. — I  knew  one  of  the  prisonen  in  the  Con- 
federate  States,  namely  :  Mr^Hontley,  who  answera  to  the  name  of 
Hatohiiuon.  I  saw  hun  at  Wilmington,  North  Carolina,  in  Febra- 
aiy,  1864.  Hia  name  in  full  is  WT  H.  Huntley.  I  do  not  know 
what  lùa  firat  initial  représenta,  but  I  imderatand  hia  second  to  be 
Hutohinson  ;  he  is  a  citizen  of  Georgia.  He  iras  a  soldier  in  the 
Oonfederate  anny  when  I  saw  him,  in  1864.  He  exhibitôd  to  me 
some  papers  at  Wihnington  ;  one  of  them  was  a  détail  bjr  which  he 
waa  sent  ont  of  the  Confederacr.  A  détail,  as  I  understand  it,  ia 
an  order  from  military  men  to  ueir  subordinatea  to  do  any  ^itmg, 
The  paper  now  produced  and  marked  K  was  she^n  to  me  by  said 
Hatcninson  at  Wilmington.  (Paper  K  is  a  passport  to  Wm.  H. 
HunUley  dated  January,  1864,  signed  by  James  A.  Seddon, 
sécréta]^  of  war»  and  J.  P.  Bei\J4minj«ecretary  of  State,  and  sealed 
with  the^seal  of  the  Confederate  States).  I  had  previously  been  an 
officer  in  General  Preston's  Staff,  and  had  recently  reaigned.  I  havo 
freo^uently  seen  documenta  of  the  aame  description  aa  aocument  K. 
It  IS  known  as  a  passport.    The  seal  appended  to  it  I  do  not 

'^oognize.  I  suppose  I  hâve  seen  frequently  such'  seals,  but  I 
never  took  particular  notice  o'f  them.  I  recognize  one  of  the  signi^ 
tares  appended.  to  that  document,  that  is,  the^  signature  of  James 
A»  Seddon,  secretary  of  wi^r,  whkh  I  hâve  aeeâTvery  frequentiy, 
and  am  acquainted  with,  and  to  the  best  of  my  knowledge  and 
belief,  it  is  uie  genuine  signature  of  Mr.  Seddon,  secretary  of  war. 
Orosê-examined  under  réserve. — I  hâve  been  in  Canada  since 
Jqne  1^,  with  the  ezce|>tion^^  two  month's  absence  from  the 
Plrovince.  I  knpw  al!  the  prisonerg.  Three  of  them  I  ealy  knew 
since  thôy  were  arrested  for  the  St.  Albans  raid,  that  is  Mr.  Spurr; 
Teavis  and  "Swager,  the  other  two,  I  knew  before,  that  ia^Huntiey 
and  Young.  I  formedtthe  acquaintance  of  the  tiiree  first  named 
aboàt  twomonÛis  after  their  arrest  w^i.  while  they  were  in  gaol  hôre. 
The  Wallace  àrreste4  before  is  no  jr$lation  of  mine.  I  was  absent 
for  two  montàhs  préviens  to  Christmas  last.  '  I  do  not  know  where 
any  of  the  ^risoners  resided  before  the  nineteentb  of  October,  or 
six  montiis  prier  thereto.  I  saw  Young  and  Huntley,  in  Hali&z, 

"  about  May  last.    I  do  not  know  where  they  were  going,  they  were 
staying^  at  à  Hôtel  ;  they  were  not  engaged  in  anv  business. 
Mr.  Huntley  sud  he  was  going  to  Bermuda,  and  Bennett  H.  . 
Young  said  he  waa  going  to  try  and  run  tiie  blockade.    I  was  in 
Montréal,  on  the  19tib  of  October  last;  I  left  Montreid,  about, six 

•or  ç^t  or  ten  days  after  the  raid,  for  Hali&x.  by  way  of  Portland, 
and  I  retumed  by  ^t.  John's  on  the  overlana  route.  My  compa- 
niona  were  General  Preston's  family.  I  know  ail  the  priseners  hère 


and  one  who  is  absent,  but  who  was  also  engaged  m  tiie  rud  of 
St.  Albans.    I  do  not, know  jhow  many  were  engaged  in  thia  raid> 

(Signed,)  W.  P.  WALLACE. 


il 


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■  I 


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!iàA&'M^0^' 


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ky  ^ 


202  _ 

Joseph  F  mteèw^.~-l  jjave  been  exaigined  befow  in  thià 
cj^  I  hâve  almdy  «aid  that  I  knew  Bennett  H.  Young  and 
Mai^M  Spurr  m  Chiéago  m  Auguat  last.    At  that  time  there  wZ 

«oUected  there  for  some  spécial  purpose.    They  went  oTi^th  Z 

at  Camp  Douglas.    Ail  the  Confedefate  soldiera  thereNwe  în 

STy"""  with^each  other.  and  knew  what  T^^ ^^ 

^        Pnsoners  Young  and  Spurr  were  there  also,  apd  eoUins^Z  ^ 

-       f/«™«Jy f  custody  on  a  charge  befo.^  Judge  cSuSl     aC 

SïtILd  &  w^  "eWpersons  there  (Confederate  soldiez) 

fnd  Slt  ÏiZ^w«Î^**^k'*^  !•  ^'^  <*°  '^°'*  «*«r  expédition, 
and  that  therewa»  to  be  a  di^ion  of  the  Confederate  wWier^ 
«^re,  befo^  «ud  Yomig  bnderiook  this  other  expe<S     S 

Z  tTaï  "^ÏS"^  f\  ^"^  '^'"^g  *«  Confederirseldier^ 
and  that  swd^ounj^had  a  Crayon  and  was  going  to  lead  a 

S^^'  J  ï"*^  '^°"  ÇonfedejéJTsoIdler  state  thSt  hf  ïad  been 
requested  to  go  on  «as  expédition  wiih  »ir.  YouT  and  he  subTe 
quenUydidgo.  TUs  wad  Mr.  Collins.  I  was  n?  Xi  to  ^  ot 
Mr.  roung's  expédition  ;  that  is,  I  cannot  saj  that  I  iL  aSed 
OoS?n«S5'  «o?^!"ation  with  Mr.  Collins  l  thesubp.  Mr 
mim  told  me  m  his  conversation  that,  Mr.  Young  had  a  numC 
of&oldier»  gpmg  ^th  him,  and  that  he,  Collina,  hal  aîother^e 

>  I  ï^deïïCr'th":,t  ^•/''  ^**!!'  ^^  YUg  aTS  Se 
m  LvemS^t    ^^^IJ^^'-^^^^^  »«thorized  by  the  cSderate 

-p  uovemment.  They  were  not  proposed  to.  me  for  anv  ferivate 
benefit,  and  we  intènded  making  thïm  for  the  pur^of«^^ 
ou^  Oovemment   and  not  our4lves.    I  did  nrS|iffi? 

tûôse^,  and  for  the  use  of  any  recruits  we  might  «et. 
-1.^     '^''^'*^*'"  &c?merf.^And  further  saith  not,  and  hath 

(Sigpod,)  J.  p.  BETTDSWOBTH. 

■W  wii'!^4®i  ^  Kîchmond,  Kentuoky,  qp  to 
aerate  a«i%!Îr?L  *IT'  "^^  1»^*  of  «»e  «me  sînce 
««rH«ï;  «P'a  -^    T^'  f*'*  °'  "^®  ^'^^  "1  prison,  aod  the  latter 
portfon  of  a  in  Canada.    I  escaped  from  prison  at  CmdO  S,3«S 

Kenhicky  c^^valry,  second  brigade  of  Morgan's  c^and.    ÏSw 


#5 


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Mr.  Y 

the  tin 

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208 


ill  tho  prisonera.     I  recognize  the  prisonor,  Mr.  Teavû,  as  beincr  a 

rela^vejVjof  mine,  and  jiiaving  been  in  the  aamo  Company  with 

"^  m  the  amnj,  and  I  havo  seèn  him  also  in  sevéral  batdes. 

"^  'len  prisoner  by  the  Federats  on  the  Ohio  Raid  in  Julv, 

Te  was  takèn  to  Camp  Morton.     Ife  was  a  citizen  of  tne 

#te  of  Kentucky,  apd  from  the  sàme  Coiuity  aa  mjself.  I  mit 
flve  priaonera  in  l^e  Ui^ted  Statea  l&at  autumn,  four  of  them 
in  Chicago  laat  Ao^st,  viz.  :  Young;  Spurr,  Hutchinaon,  and 
ll'eavia,  ahd  raaw  Swager  in  Vincennea,  in  Indiana.  By  Hutch- 
fhaon,  I  mean  the  priaoner  anawering  to  that  name  qi^thia  examin»- 
tion.  I  do  not  know  bv  yrhat  n&mh  he  'was  known  m  Chicago,  but 
hia  real  name  ia  Huntlcy.  ïhero  were  probably  aixty  or  aeventy  , 
Oonfederate  aotâiors  in  Chicago  at  the'tJme  mentioned^  I  aaw  about 
fifty  myaelf,  and  I  undehtood  there  were  many  more  there  at  the' 
timo;  our  objoct  waa  to  releaae  the  priaonera  at  Camp  Douglaas. — >. 
.Thiii  expédition  failed,  and  upon  ita  failure  another  expédition  waa 
organized  by  Mr.  Yourig,  and  another  waa  ôrganizod  by  ànotfaer 
.,  gelitleman,'  whoae  name  I  do  not  wiah  to  mention.  Mr.  Young'a 
expédition  waa  againat  the  town  of  St.  Albans,  but  upon  a  little 
more  extended  plan  than  waa  carried  out  ;  one  of  the  objecta  was 
'  to  bum  the  town.  I  apoke  with  Mr.  Young  about  the  expédition 
againat  St.  Albana — this  waa  at  Chicago^  before  he  left,  he  aaid  he 
waa  going  immediately  to  8^  Albana,  and  that  he  had  ttie  men  to 
go.  I  was'  apoken  to  by  Mrî^ Young  to  be  one  of  tHe  party,  and  I 
also  apoke  to  Çaptain  Collina  to  join  the  party — the  aame  OoUins . 
who  waa  a  priaoner  hère  in  December  laat.  I  decided  at  that  tipe 
to  join  Young'a  expédition,  but  finally  changed  my  imndr«fi^  weoit 
down  to  Southern  Illinoia.  Collina  went  with  me  andleft  me  there, 
the  next  I  heard  of  him  waa  that  he  was  a  priaoner  hère.  Young 
waa  makiqg  up.tliia  party  in  the  capacity  of  commander  of  it.  I 
.■rf  '4tnew  that  Mr.  Young  had  the  authority  to  rwse  the  Company  in 
question.  ,  I  aaw  his  authority  in  writing,  in  Auguat  of  last  year.— 
being  shewn  the  paper  fyled  by  Mr»^oung  at  hia  voluntaiy  atate-* 
pent,  and  identified  by  tiie  letter  N  on.tiiç  baok  of  it  ;  I  aay  that 
it  is  the  authority  I  saw,  and  am  sure  that  itis  theidentical  paper. 
Mr.  Young  himself  shewed  it  to  me.  I  read  it  and  examinn^  it  at 
the  time  he  shewed  it  to  me,  whioh  was  beibre  he  went  to  Chicwo- 
I  do  not  remember  podttyely  wheiher  he  ahewed  me  any  orner 
inatructions  at  that  time  ;  but  I  am  positive  that  he  did  not  shew 
me  hb  oommismon.  He  diewed  me  tiie  paper  to  satisfy  me  that  he 
had  authority  fipcpi  Bichmpnd,  fût  the  purpose  of  collecting  a  parijy' 
as  stated  in  the  |>aper.   He  eùiMifitnti  toat  his  instructions  were, 

whenhehad  oollected  thft4piri|i^t^m reporiio  tfae  Honorable  C.  C^ 

Clay,  who  was  Commisnoner  fôr  the  Oeiûfedesaito  ^tates  hère,  imd 
to  ^ake  his  instructions  trom  him.    The  foot  of  Mr.  Young  holding 


t.- 


f^*' 


Ml 

il'! 


V-î)v; 


ri-^ 


\  H^ 


I  '  ■  ■'*■> 


K'  â 


V 


^':.v 


•  '204  • 

Z  L      Confederate  Boldiers.»   I  did  not  see  them  mySf,  bu  it 

ri,.v  ^.î  ]  5   T  ^  "^^^'^^  ^  instructions  from  said  Mr 
fwlii  îî       •      ®'*°?^^ **"  ^*^  o"*  ^  expeîtion.  I  understâS 

m  tûe  anny.    It  would  be  unpossible  to  describe  the  dresa  of  Mnr. 

^S^^W  Confederate  uniform,  remamder  plam,  some  in 

colore.    I  hâve  seen  a  whole  régiment  dressed  in  Y^kf^  Sn  J. 

ciotmng  was  obtained,  was  from  captures  from  the  enemv     From 

OBjected  to  by  Mr.  Johiison  and  Mr.  Bethmie. 
««J!Sf*i       "~      .  ^^^^  ^0^  a°y.  of  your  peraonal  knowled^e 

"Sed^JlT  ""  ^*"«^PSÎ*«  i^dividuals  and  banks  were 
^«i'/o^i  'rT""'  ^"'^  ^^^'•«»  8^0*  or  put  to  death,  though 
unamed  and  unoffendmg  ;  and  the  property  of  privateiSividuSs 

StSj  nlT  J*«  5>l>Jocted  to  by  the  Counsel  for  the  Uuited 
otates,  and  the  obiection  was  maintaiaed. 
i>e  Counsel  of  the  United  States  object  to  the  whole  of  thia 


(Signed)        THOMAS  M.  STONE. 


^ 


% 


206 

OharUt  Albert  Withert.—l  am  a  captain  in  the  army  of  the 
Confederate  States.  I  was  adjutant-ceneral  on  the  staflFof  General 
John  Mor^  at  the  time  of  lus  death  ;  and  I  was  taken  prisoner 
when  the  General  was  killed,  on  the  fourth  day  of  September  last. 
I  identify  the  prisoner,  Charles  Moore  Swager.  I  saw  him  first  in 
the  Oonfederate  army  of  the  Potomac,  at  the  commencement  of  the 
war  ;  aâd  I  was  also  in  the  same  régiment  :  he  waa  in  the  first 
Kentucky  Infantry.  He  was  afterwards,  in  December,  1862,  in 
Company  H,  of  the  Second  Kentucky  Infantry.  He  comes  frorn 
Kentucky,  I  believe.  I  am  acquainted  with  the  signature  of  James 
A.  Seddon,  Secretary  of  War  of  the  Confederate  States.  Being 
ehown  and  having  examined  the  document  marked  |il,  produced  by 
Young  at  hîs  voluntary  statement,  I  déclare  the  signature  of  James 
A.  Seddon,  Secretary  of  War,  thereto  appended,»  to  be  genuine. 
Being  in  the  Adjutant-General's  department,  I  hâve  seen  ail  the 
commissions.  Instructions  and  orders  for  our  command  passed 
through  mj  hands  officially,  and  I  hâve  consequently  seen  a  great 
many  of  his  signatures.  I  know  Mr.  Seddon  personally.  I  hâve 
been  in  his  oflBce  frequently,  and  seen  him  writing.  The  document, 
M,  is  the  onlykind  of  commission  we  hâve  in  our  service  ;  it  is 
simply  a  notification  of  appduatïnent.  I  hâve  never  seen  any  other 
kind  of  commission  ;  nor  is  there  any  other  légal  commission  than 
this,  except  that  General  Morgan  was  ipermitted  to  appoint  his  own 
subaltems  ;  which  appointments  were  afterwards  ratified  in  the  usual 
form  ;  and  such  documents  as  document  M,  were  then  used,  I  hâve 
examined  the  paper.  M,  and  to  the  best  of  my  knowledge  and  belief, 
it  is  a  genuine  document.  I  hâve  no  doubt  of  it:  I  hâve  four  com- 
missions like  it  myself.  When  thèse  commissions  are  issued,  there 
is  an  oath  accompanies  them,  which  bas  to  be  filléd  up  and  re- 
tumed.  Being  shown,  and  having  examined  the  document  N, 
produced  by  Young  at  his  voluntary  statement,  I  déclare  the 
signature  thereto  appended  is  genuine.  I  hâve  not  a  particle  of 
doubt  about  it  ;  I  hâve  seen  it  too  often.  I*  is  what  is  called  and 
known  as  a  détail  for  spécial  service.  From  my  knowledge  of  the 
disciplme  and  management  of  thé  Confederate  ktSj,  I  can  state 
that  detuls  of  this  description  are  of  very  ordinary  occurrence. 
Whenever  any  spécial  service  is  required,  a  written  détail  issues 
from  the  Secretary  of  War,  or  from  an  intermediate  commander  ; 
and  Bometimes  it  issues  in  the  form  of  the  paper  N  which  is  what 
I  call  a  oiroular  order  ;  and  sometimes  a  spécial  order  is  issued, 
which  is  numbelred  and  marked.  The  paper  N  is  an  order  for 
spécial  service  ;  but  as  the  sen^ce  is  not  mentioned,  it  would 
corne  under  the  order  of  spécial  or  secret  aeg«ce»It^4bft. 


practioe  for  Confederate  officers  to  organise  and  send  out  small 
expéditions  on  secret  service,  ranging  from  three  to  thirty  men. 


i.  :    ^*J 


*      À 


- 


•J  I 


206 

within  the  enemy's  lines."  I  hâve  myself  frequentlj  done  so,  actuiir 
M  Adjutanfc-General.     Captain  CoUins,  who  waa  a  prisoner  hère  m 
Uecember,  was  once  sent  out  bj  me  on  spécial  service  ;  and  com- 
mandedapartyoftwenty^hreemen.  Thèse  secret  expéditions  were 
always  sent  mto  the  enemy's  lines  ;  sometimes  tô  capture  prisoners, 
bum  bndges,  for  seouting  purposes,  to  destroy  «ommnnications,  and 
telegrapla  ;  and  on  one  occaflion  I  sent  an  expédition  to  bum  a 
tomi,  under  General  Morgan's  orders;  there  was  about  fifty  men. 
Ihese  expéditions  were  intended  to  harass  the  enemv  in  everv 
possible  way.     Sometime  in  1862,  orders.wère  issued  frora  the 
Secretary  ot  War  and  Adjutant  General,  to  form  smaD  parties  of 
mea  as  partizan  Rangers.     I  know  a  numbor  of  thèse  men  and  of 
companies  of  partizan  Rangers  which  ^9^  in  opération  ;  thèse  com- 
pames  arenot  attached  to  the  regular  artSy  ;  each  company  is  under 
ito  own  officer  thèse  officers  are  seldom  above  the  rank  of  Captain 
*rom  the  commission  and  paper  N  shewn  me,  I  should  consider 
ïoung  and  his  party  to  be  ft  p^ty  of  this  description  on  spécial  ser- 
vice, i^arties  sent  mto  the  enemy's  lines  on  spécial  service  never  wear 
any  umform.    Bemg  shewn  and  having  examined  the  paôer  writing 
now  piroduced,  and  marked  0, 1  recogniae  the  signature  thereto  â 
the  signature  of  said  Mr.  Seddon,  Secretery  of  War.    I  hâve  no 
doubt  about  it  ;  it  is  genuine.     I  know  the  Honortible  C.  C.  OUy, 
the  gentleman  mentioned  in  paper  0.     I  knew  him  when  he  wm 
fcenatôr  for  Alabama  in  the  Confederate  States  Senàte.     I  do  not 
know  what  position  he  hèld  hère  last  antumn.    I  saw  him  hère 


PAPER  0. 


!    Confederate  States  of  America, 
War  Department, 

Lient., — 
You  hâve  been  appointed  temporàrily  first  Hétit.  in  the  Pro- 
vittonal  Army  for  spécial  service.  You  wiU  proceed  without  delay 
by  the  route  ahready  indicated  to  you,  and  report  to  C.  C.  Clay, 
jun.,  for  ordew.  You  wiU  coUect  together  such  Confederate  8oldi<»^ 
who  bave  escaped  from  the  enemy,  not  exceeding  twenty  in  number, 
that  you  may  deem  suitable  for  that  pnrpôee,  and  exécute  such 
enterçnses  a?  may  be  indioated  to  you.  You  wiU  take  care  to 
organue  withrn  the  territory  of  the  enemy,  to  vidate  noue  of  the 
neutrahty  lawB,  and  obey  implidtly  his  lastmctionB.  You  and 
your  men  wiU  reçoive  traospoitation  and  customarr  rakiona,  and 
clothing  or  c(Hmnutation  therefoi'. 


Bec.  of  W*. 


207 


^ 


aj^t  two  months  ago.  I  am  aware  that  there  is  a  state  of  war 
existing  between  the  Northern  States  and  the  Southern,  wid  has 
beett  alnce  1861.  We  hâve  in  the  South  a  Président,  Senaté,  and 
Hooae  of  Représentatives,  sittmg  at  Richmond,  and  hâve  a  regiJarly* 
orgamsied  government  and  army  from  t^e  highest  to  the  lowest 
grades.  I  know  that  in  June  last,  Mr.  James  A.  Seddon  was 
Seoreta^  of  War  for  the  Richmond  Gbvemment,  and  Mr.  Davis 
Uie  Président.  I  am  well  aoquamted  with  the  mode  in  which  iiie 
war  has  boen  carried  on  by  the  Fédéral  troops  agtùnst  the  South. 

QyMtMn.- — Are  you  aware  whether  or  no  petty  warfare  and  a 
séries  of  petty  déprédations  wero  svstematically  carried  on  by  the 
Northern  soldiers  in  SouiSiem  temtory,  in  which  private  property. 
was  eonstantly  taken  or  destroyed  ?  ^  - 

Objeoted  to  as  illégal,  irreleyant,  and  foreign  to  the  issues  in 
this  cause.    O^ection  maizMiMned. 

Qwiition. — Can  you  state  any  particular  instances  in  which 
parties  of  Northern  soldiers  hâve  entered  the  Southern  Unes  in  dis- 
guise, and  taken  or  destroyed  private  property  ?  ' 

Objected  to.     Objection  mamtained. 

Questipn. — Is  it  not  the  fact,  that  during  last  summer  an  im- 
mense ext^it  of  Southern  territory  was  wholly  devastated  by 
Northern  troops,  and  private  property  to  an  immense  value  appro- 
priated  by  tiliem  or  wantonly  destroyed  ? 

Objected  to.     Objection  maintained. 

I  do  not  know  Mr.  Clay's  Jiimdwriting.  > 

The  CouBsel  of  the  United  States  object  to  the  whole  of  this 
testimony  as  irrelevant  and  illégal,  and  consequentiy  décline  to 
cross-examine. 

(Signed)  C.  A.  WITHERS. 

William  H.  Carroll  : — I  was  formerly  an  officer  in  the  Confeder- 
ate  army,  holding  the  rank  of  Brigadier  General.  I  commanded  a 
brigade,  at  one  time.  Mr.  James  A.  Seddon  was  Secretary  of  War 
for  the  States  in  June  last.  I  am  acquainted  with  him,  and  hâve 
seen  him  write  and  sign  his  name.  I  know  his  signature  when  I  see  it. 
Beine  rixevm,  and  having  examined  the  documents  M,  N  and  0, 1 
should  say  tbat  tiie  sdgtiatures  to  those  documents  are  the  genûine 
ûgoatoxes  of  James  A.  Seddon.  I  might  be  imposed  upon  by  his 
signature,  but  I  bave  not  the  slightest  dom>t  that  they  are  the  genume 
signatores  of  the  âaid  James  A.  Seddon.  I  hâve  firequentiy  seen  irach 
pspms  before.  The  pi^r  M  is  the  usual  and  cûstômary  form  of 
cou^isgjon  to  an  oflScer  ;  it  is  the  same  as  the  one  I  received  myself 
M  BMadiep-General.  An  oath  accwnpanies  it,  whicbi  is  retumed  by 
liie  ofltedr.  ïlie  offioer  itots  imder  iEé  papr,  ttnS  reïnaiùs  an  ofiBéè*" 
QBtil  the  Senate  rejects  such  appointment.    I  believe  the  Senate  k 


* 

e 


M 


1  'i 


i- 


208 


now  sitting  at  its  first  session  since  the  date  of  that  paper.  I  hare 
seen  ail  the  said  papers  before  marked  M,  N  and'O  ;  it  was  some 
two  or  three  days  after  the  St.  Albans  raid.  The  man  who  shewed 
them  to  me,  said  they  came  from  Toronto  ;  thev  were  shown  to  me 
to  see  if  they  were  genuine,  and  to  say  what  should  be  done  with  them, 
and  I  directed  them  to  be  sent  to  Mr.  Abbott,  one  of  the  Cîounsel 
for  the  prisoners,  and  I  beliere  it  was  done.  The  prisoners  werp 
at  St.  Johns  or  in  that  neighborhood  when  the  said  papers  were 
fihewn  to  me.  I  do  not  know  whether  Mr.  Abbott  had  been  to  St. 
Johns  previous  to  the  time  the  papers  were  shewn  to  me  or  not. 

Oro8»-examination  under  reserve  of  objections. — I  do  not  know 
in  whose  handwriting  the  body  of  the  papers  M,  N  and  0,  are 
filled  up.  The  only  writing  I  recognize  on  the  papers  is  the  signa- 
tarés  ;  it  is  usual  for  clerks  to  fill  up  the  commissions.  I  do  not  know 
D^o  had  possession  of  those  papers  m  Toronto,  nor  dç  I  know  who 
sent  them  to  Montréal.  They  were  brought  from  Toronto  to.  Mon- 
tréal by  a  person  named  Hiams  ;  I  baye  only  seen  him  once  since  he 
brought  the  said  papers.    Thèse  papers  were  shewn  to  me  in  the 

Eresence  of  two  persons,  one  named  Moore,  and  the  other  named 
fcChesney.    I  io  not  know  his  Christian  name  ;  he  is  now  in  Court, 
and  was  residing  in  Montréal  at  that  time.    I  did  not  send  for  tiie 
papers.  I  was  toîd  by  some  person  that  they  were  sent  for  by  Lieut. 
Young  ;  this  was  some  days  after  the  raid.    I  know  ail  the  prisoners 
since  the  raid  ;  I  knew  one  before,  that  is  làeut.  Young  ;  I  met  him  in 
Canada  on  his  way  to  the  Confederate  States  last  feU  a  year  ago. 
In  the  fall  or  winter  of  1863,  I  met  him  in  Montréal  ;  I  think  he 
stopped  at  the  St.  Lawrence  Hall  or  the  Donegana  ;  I  met  Wm  once 
or  twice,  I  cannot  say  how  long  he  remained  in  the  city.    I  saw 
him  in  Toronto  once  sometime  last  summer,  I  think  in  July  or 
August.  I  presumedhe  had  retumed  from  the  Confederate  States. 
I  am  not  certain  that  he  went  there.    I  met  him  at  the  Queen's 
Hôtel  Toronto  ;  this  was  the  first  time  I  met  him  in  Upper  Canada  ; 
I  did  not  meet  him  there  afterwards.    I  did  not  meet  any  of  the 
other  prisoners.    I  did  not  see  any  of  the  prisoners  immediately 
before  the  raid  at  Montréal  J  and  further  saith  not,  &c. 

W.  H.  CAEROLL. 

Montrote  A.  PaUen. — I  am  a  native  of  Mississippi,  I  hâve  been  a 
Surgeon  in  the  OonfedeVate  army  ;  at  that  time  was  médical  director 
of  a  Corps  d'Armée.  I  knew  two  of  theprisoners  before  I  saw  them 
in  Montréal, — ^Mr.  Swager,  and  Mr.  Huntiey,  who  answers  to  the 
name  of  Hutchinson.  iknew  them  in  the  Confederate  army  ;  tiiey 
were  soldiers  in  Mississippi.  I  know  Mr.  James  A.  Sedcfon,  who 
was  Seoretary  <rf  War  uât  Jtmer^î  teôrriris  hand-wnfâîg^s^=^ 
signature.    Being  shewn  and  having  ezamined^the  papers  marked 


?a 


h 


209 

M,  N  and  0,  I  déclare  that  the  signature  James  A.  Seddon 
Secretary  of  War,  is  genuine.  I  hâve  carefully  examined  the 
said  three  documents,  and  the  documents  are  genuine.  I  hâve 
seen  similar  documents  to  papers  N  aùd  0,  which  are  caUed  détails 
1  hâve  frequently  seen  similar  documents  to  pàper  M  ;  it  is  the 
regular  commission,  the  same  as  mine,  and  I  hâve  alwavs  seen  the 
same  kmd  in  the  Confederate  States,  except  one,  which  was  General 
Frost's.  In  that  commission  the  pen  was  drawn  through  the  words 
respecting  the  sanction  of  the  Senate.  Being  shewn  and  havin^^ 
examined  the  paper  writing  marked  P,  I  bel^eve  the  signature 
thereto  to  be  the  signature  of  C.  C.  Clay.  I  am  acquainted  with 
bis  hand-wntmg>nd  signature  ;  his  firstnameis  Clément  ;  I  beheve 
he  was  Senator  for  Alabama.  I  know  that  MrT  Clay  was  in  this 
country.  I  never  sawhis  papers,  but  I  know  that  he  was  a  Com- 
mwsioner  of  the  Confederate  States  Ôf  America. 

Oro88-examined  under  reserve.— My  attention  being  particularly 
called  to  the  figures  and  dates,  that  is  to  the  words  October  6, 1864 
andbeingaskedif  the  paperon  which  thèse  words  are  written  présents' 
any  appearance  to  induce  me  to  believe  that  it  was  tampered  with 
I  answer  that  I  am  not  in  the  habit  of  handling  papers  that  are 
rospected  of  being  forged.  I  do  not  know  where  Mr.  Clay  was  on 
the  6th  October  last. 

Quettion. — Whose  hand-writing  is  the  body  of  fhe  paper  writ- 

Amwer.—^  far  as  I  am  acquainted  with  Mr.  Clay's  letters 
and  figures,  thèse  look  very  much  like  his. 

Queêtion. — Will  you  swear  that  the  word  October,  or  so  much  of 
it  as  is  written  on  said  paper,  also  the  figure  6,  and  the  fi.mre8  ' 
1864,  contained  in  the  said  paper  are  in  the  hand-writing  of  the 
Hon.  C.  C.  Clay,  Jun.  ^ 


PAPER  P. 
Mem.  for  Lient.  Bennett  Young,  C.  S.  A. 

Your  report  of  your  doings,  ùnder  your  instructions  of  16th  June 
taat  from  the  Secretary  of  War,  covering  the  list  of  twenty  Con- 
federate soldiers  who  are  escaped  prisoners,  collected  and  enroUed 
by  you  under  those  instructions,  is  received. 

ïour  suggestions  for  a  raid  upon  accessible  towns  in  Vennont 
commendihg  with  St.  Albans,  is  approved,  and  you  are  authorised 
and  required  to  act  m  conformity  with  that  sucirestion 

October  6, 1864.  6ft       "• 


irmcEAT,  JUN, 


î  Ai 


Otnunissioner,  0.  S.  A. 


t    f 


\ 


**&sé^te^i  ^^feii^3t.,âsiif  \-«,  ,^^-''H.h.A^^,ii^k 


*•    ic .    »v  "^ys 


ii 


■y 


Anêwer. — I  did  not  flee  him%rite  it,  and  oonsequently  cannot 
swear  thftt  he  wrote  it.  I  did  not  see  him  write  his  name  to  the 
said  document.  If  I  wi^re  aeashier  in  a  bank  in  which  Mr.  Clay 
had  &  deppait,  and  a  oheok  waa  presented  to  me  with  that  signa- 
tare,  I  wouid  pay  it.  I  think  tÙs  is  the  firét  time  I  ever  saw  Uie 
said  paper.  I  hâve  not  seen  Mr.  Clay  for  two  months.  He  waa 
hère  either  in  OctoW  or  November  last  ;  ,and  further  saith  not. 

MONTROSE  A.  PALIEN.    * 

WiJMam  W.  Cleary,  being  recalled,  said  : 

Dûring  last  summer,  and  for  more  than  a  year  previous,  Mr. 
James  A.  Seddon  was  Seoretary  of  War  for  the  Contederate  Gov- 
ernment. I  was  empïoyed  in  an  officiai  position  at  Richmond  pre- 
vious to  coming  Bere.  I  was  an  employé  in  the  Treasury  Depart- 
ment, but  the  duties  I  performed  were  connected  with  the  war 
office.  I  hâve  seen  sud  Mr.  Seddon's  signature  over  a  thousand 
times,  and  know  it  well.  T'have  seen  him  wrlte  and  sign  bis  name 
frequently.  Being  sbewh  and  having  examined  the  papers  fyled 
in  this  case  marked  M,  N  &  0,  frommy  knowledge  of  Mr. 
Seddon's  signature,  I  bave  no  doubti^ut  that  ]the  signatures  are  • 
genuine.  Ihave  seen  thé*  commission,  the  paper  M  before  noV;  to 
the  best  of  my  recollection  it  was  in  the  latter  part  of  July  last. 
The  prisoner  Young  then  exhibited  it  to  me.  He  stated  to  me  that 
he  had  other  instructions  in  addition  to  the  commission.  This  was 
at  Toronto.  I  do  not  know  where  he  was  going  then.  I  am  not 
sure,  that  Young  told  me  he  wasgômg  over  to  St.  Catherines  to  see 
Mr.  Clay  ;  allthis  took  pl^ce  in  the  latter  part  of  July  hwt  or  the 
beginning  of  August.  I  know  Mr.  Clay  ;  his  name  is  Clément  C. 
Clay,  jun.  ;  he  was  an  officer  of  the  Confederate  Government,  and 
was  appointed  by  the  Government  a  commissioner  abro&d,  and  that 
was  his  position  m  this  countrv  ;  I  am  personally  aware  df  this  febt. 
The  last  I  heard  from  Mr.  Clay  was  that  he  was  enSroute  for  the 
Confederacy.  I  hâve  since  heard  of  him,  from  Halifax.  I  think  it 
was  in  December  la3^  that  he  left  Owiada.  I  know  his  handwrit- 
iug  and  signature  very  well.  Being  shmn  and  having  exainmed 
the  paper  writing  marked  P,  I  believe  that  the  whole  of  it,  the  body 
and  signature  both,  are  in  the  handwriting  of  said  Clément  C.  Chjy. 
I  bave  no  doubt  of  it  at  ail.  His  handwriting  is  peculiar  and  very 
characteristic,  and  I  oould  not  very  well  mistake  it.  I  saw  that  paper 
f<Mr  the  first  time  about  a  month  ago.  I  was  pneviously  aware  that  Mr. 
Clay  had  sanctioned  the  St.  Albana  raid.  I  beoame  aware  a  ahort 
time  after  the  raid  occurred  that  he  had  authorized  it.  I  know  this 
from  himaeîfc  It  was  in  conaamience  of  roy  loiowledge  tiiat  he  hai= 
an^oriaed  the  raid  that  I  asked  to  «ee  paper  P.    The  information 


Jii 


!;&; 


211 

Ujtfrom  ftfr.  Cnay,ira8  that  the  authorily  hehad  given  wm  in 
irnbng.  He  «ud  the  paper  waè  in  Montréal,  and  to  th©  beat  of 
my  knowledge  he  said  it  was  in  tho  possession  of  Mr.  Abbott  I 
^as  aware  before  the  raid  that  Mr.  Young  had  proiected  some 
e?pedibon  ;  but  of  this  raid  I  knew  nothing  ;  I  knewTat  he  VS 
«(^munication  with  Mr  Clay  about  some^xpeditTon     A^Tth^ 

SlL^r  'J*?'*  fT  ¥''  ^^'Vj^i-^'elf  that  he  had  advanced 
from  the  Confederate  funds  sums  of  money  for  the  defence  of  the 
pnsoners.  I  understood  from  Mr.  Clay  that  thé  parties  not  arrested 
had  turned  over  to  him,  as  Confederate  Commissioner,  the  money 

Ihat  waa  before  the  Court.  I  hâve  seen  a  grèat%any  commission 
Ae  naper  M  ;  that  mper  is  m  the  usual  form  of  comisions,  when 
the  Senate  is  not  m  Session.  It  is  not  usual  to  append  any  seal 
to  documents  of  that  sort.  The  Senate  was  not  in  session  at  the 
time^  that  paper  was  issuod,  but  is  now  m  session;  I  believe,  accord- 
ingto  the  Constitution  aiid  laws  of  the  Confederate  States,  that  the 
Se(5retary  of  War  is  the  proper  person  to  exécute  and  issue  such  a 
commission  and  such  orders  as  papers  M,  N  and  0.  Lieut.  Younjr 
would  hâve  been  hable  to  be  tried  by  court  martial  if  he  had  disobeyed 
the  du-ections  contamed  m  those  papers.  '    i 

Oro88-examined,  under  reserve  of  objections  • 
I  beUeve  Mr.  Clav  came  hère  in  the  month  of  June  last  as  Com- 
miswoner.  Ido  not  know  where  he  stonped  in  Montréal.  He  was  iii 
Upper  Canada;  his  pnncipal  place  of  résidence  was  afr  St.  Cathe- 
nnes.  I  saw  bm  frequently  at  the  Clifton  House,  also  at  St.  Catt 
ermes.  In  October  laat  he  was  residing  at  St.  Catherines.  I  saW 
hun  there  in  the  months  of  August  and  September  last.  Hb 
remamed  m  Canada  from  June  tol)ecember,  and  I  understood  hià 
place  of  résidence  was  St.  Catherines.  I  do  not  want  it  to  be  said 
that  I  said  he  remamed  in  Canada  ail  the  time.  I  think  he  left 
Québec  m  Je  middle  of  December.    I  hâve  been  informed  he  lefl 

S  î<n!î  *  •  T«  "^n®  '"!*  •^''^'  ^''«'^  ï  °»»<ï«  bis  acqu^ntancei 
at  Toronto,  m  Upper  Canada.  Imet  him  afterwards  i^  Toronto,; 
m  the  months  of  August  and  September.  I  met  hôn  at  the  Quéen'si 
Hôtel,  where  I  met  him  m  September,  about  the  first  week  thereof  : 
ï?.«!îlKrM''  n,*^  to  St.  Catherines,  to  visit,  as  I  suppose,  the 
Honorable^Mr.  Clajr.  I  ^d  not  see  him  afterwards.  Z  August 
last,  I  met  the  pnsoner  Hutohinson,  orHuntley,at  the  Quetn's 

«f  Huntley.    Mr.  Young  was  there  at  the  same  time.    I  sawthem 
"  ^^'P'^y  to^g^^44Q,  not  Modleet-oieetiBg  any  other  ofth»^ 
TJfiaonere.    I  recolTect  àiso  having  been  introduoed  to  Captam  Coi- 
ns, who  was  one  of  the  penoos  arrested  for  the  St.  Albàns  raid 


Jii 


-\.,t'' 


.;-*:«'! 


?; 


i-1,    ^l 


!      1*1 


^^tâù^tlSsi-ttJi^  '  1  *, 


Il 

i 


m 


In 

in 
m 


n 


'    212 

and  who  waa  discharged  by  Mr.  Coursol.  I  met  him  in  August 
last  in  Toronto.  I  hâve  aeepi  some  of  the  other  persona  who  were 
prifloners,  and  discharged  by  Mr.  Coursol,  in  Upper  Canada  in  the 
month  of  Auguatlast.  The  aaid  Mr.  Clay  was  both  a  civil  and 
a  military  officer.  He  made  his  reporta  to  the  State  Department, 
which  waa  the  civil  department  of  the  State,  but  he  had  ample 
posera,  both  civil  and  military;  but  hehad  no  rank  in  the  army. 
He  waa  not  a  commiaaioneq  officer  in  the  army. 

l(Signed),        WM.W.  CLEARY. 

Jame$  Watson  WaUacel  of  Virginia,  on  his  oath  aaith  : — I  am  a 
native  of  Virginia,  one  «f  Ithe  Confederate  States.  - 1  reaided  m 
Jefferaon  in  the  said  Statei  I  left  that  State  in  October.  I  know 
Jamea  A.  Seddon  waa  Seciretary  of  War  last  year.  Being  ahown 
and  having  examined  thé  papera  M,  N  and  0, 1  aay  that  from 
my  knowledge  of  hia  hand^i^ting,  the  aignàturea  to  said  papera  are 
the  genuine  aignàturea  of  jithe  aaid  Jamea  A.  Seddon.  I  hâve  aeen 
him  upon  several  occaaiona  write  and  aign  his  name.  He  bas 
signed  documenta  and  a|terwarda  handed  them  to  me  in  my  pré- 
sence. I  never  waa  in  thé  Confederate  army.  I  waa  commisaioned 
as  major  to  nûae  a  battahon.  I  hâve  aeen  a  number  of  the  com- 
misaiona  issned  by  the  Confederate  Goyemment,  and  the  commiasion 
of  Lieutenant  ïoung  marked  "M"  ia  in  the  uaual  form  of  ail 
commiaaiona  iaaued  in  the  army,  which  are  alwaya  aigned  by  the 
Secretary  of  War.  I  never  aerved  ;  I  was  incapacitated  by  an 
accident,  and  being  then  kidnapped  by  the  Northemera. 

I  waa  in  Richmond  in  September  laat.  I  then  viaited  the  War 
Department.  It  waa  then  notorioua  that  the  war  waa  to  be  carried 
into  New  ïkigland  in  the  aame  way  that  the  Northemera  had  done 
in  Vir^nia.  When  I  waa  in  Virginia  I  lived  in  my  own  houae 
until  I  waa  bumed  out,  and  my  family  were  tumed  out  by  the 
Northern  aoldiera. 

The  Counsel  for  the  United  States  object  to  the  whole  of  thia 
évidence  as  illégal,  irrelevant  and  foreign  to  the  issue,  and  con- 
sequently  décline  to  crosa-examine. 

(Signed)  J.  WATSON  WALLACE. 

George  Ni  Sanders. — Being  ahown  and  havmg  examined  the 
paper  writinga  marked. M,  N  and  0,  I  believe  I  hâve  aeen 
aimilar  papera  before  or  of  a  aimilar  purport,  and  which  I  believe 
to  be  the  aame  subatance  as  theae,  the  day  of  the  St.  Albana  raid. 
1  merely  looked  at  the  papera 'at  ài»t  time  to  aee  their  gênerai  pur- 
port,  and  to  hâve  them  delivered  to  the  Counsd  for  tiie  defence  of  ^ 
we  priaoners.  I  directe?  ihém  to  be  reimtted  16  lETe  pnèoner's 
Counael  ;  they  came  from  Toronto,  I  believe,  on  the  apphcation  of 


iti::,: 


'^t-fÇ• 


218 

Young  after  hia  arreat.    I  know  Mr.  C.  C.  Clay,  whose  name  k 
Babscnbed^to  document  P.    He  waa  then  exerciaing  the  authority 
of  a  Confederate  agent,  claiming  full  ambaasadorial  powers,  aa  Wl 
civil  aa  mihtary.    I  had  aeveral  converaationa  with  Mr.  Clay  about 
the  St.  Albana  raid.    He  informed  me  that  he  directed  the  raid 
widgave  the  order  for  it— the  St.  Albana  raid— and  Bennett  h' 
Young  waa  matructed  by  him  to  carrj  it  out.    Mr.  Clay  told  me 
about  the  eighth  day  of  December  laat,  a  few  daya  before  he  left, 
that  he  would  leave  such  a  letter  aa  the  paper  writing  marked  P 
and  which  I  infer  had  not  been  written  up  to  that  tirae.     The  letter 
which  he  aaid  he  would  write  on  that  occaaion  waa  a  letter  aaaum- 
mg  ail  the  responaibility  of  the,  St.  Albana  raid,  for  which  he  waa 
reaponaible.  Upon  Ijeing  aaked  to  look  at  the  paper  writiug  marked  P 
Main,  and  the  date  eapecially,  I  aay  the  converaation  I  had  with 
Mr.  Clay  had  no  référence  to  thia  paper.     Mr.  Clay  waa  to  leave 
a  déclaration  m  the  ahape  of  a  letter,  aaauming  ail  the  responaibility 
of  the  aaid  raid.    Mr.  Clay  waa  not  hère  on  the  13th  of  December 
laat.    He  muât  hav^e  left  hère  early  îd  December  laat,  aome  few 
daya  before  Mr.  Couraol  discharged  tîfe  .priaoners.    Mr.  Clay  in- 
atructed  me  to  employ  Counael  to  défend  the  priaoners  on  tehalf  of 
the  Confederate  Government  ;  he  left  a  aum  of  mohey  to  my  crédit 
for  that  purpoae.    I  employed  Counael  accojrdmgly.    My  miaaion 
waa  one  of  peace.    I  knew  nothing  of  the  St.  Albana  raid  or  any 
other  raid.     The  firat  information  I  had  of  it  waa  after  it  occurred. 
Laat  Auguat  I  met  aaid  Mr.  Clay  and  Young  in  St.  Catherinea, 
Upper  Canada  ;  I  believe  about  the  time  of  the  Chicago  Conven- 
tion.   I  am  aware  that  the  St.  Albana  raid  has  been  ordered  and 
approved  by  the  Confederate  authoritiea.  ,  , 

The  Counael  for  the  United  Statea  object  to  the  whole  of  thia 
évidence,  and  décline  to  croaa- examine. 

(Signed)  GBO.  N.  SANDERS. 


t. 


l'i  I 

;  •-#  î  ^\ 


-i 


i 
u 


î' 


''JE 


February  15th,  1865. 

Stejjfkèn  F.  Oamerou.—l  am  a  citizen  of  Maryland.  I  hâve 
teèn  m  the  Confederate  aervice,  aa  chaplain,  from  the  beginning 
of  the  war  to  the  preaent  time.  I  waa  in.Richmond  oa  the  lat 
February  instant. 

(The  Counael  for  the  defence  produced  muater-roU  of  Company 
A,  8th  Keiltucky  Cavalry,  containihg  the  name  of  Marcua  Spurr  • 
copy  of  muater-roU-of  Lagrange  Light  Guard  of  Georgia,  con- 
tainmg  the  name  of  William  Hutchinaon  Huntley  ;  copy  of  muater- 
roll  of  Company  B,  Colonel  Chenault's  Kentncky  Cavalry,  coife 
wniné  the  name  of  Sànîre  TAAvia  r  nnnxr  aP  innafo.t.~^ii  ^^f  n^ 


-mming  the  name  of  Squîre  Teavia  ;  copy  of  muater-roU  of  Company 
H,  Second  Kentucky  Infimtry,  oontaining  the  name  of  Charlea 


'■■V 


}  !i  I 

1 


I       t 


^  m 

a 
i 


^i».â'k(t«iji-ft<il(',^  ""Jt;  *  iv".«s 


h 


»\ 


214 

M.  Swager  ;  also  copie»  of  two  lettere  of  instrûctiona  addrêsséd 
to  Lieiit.  Bennett  H.  YoiMg,  dated  Jane  16th,  1864,  and  purpcWiing 
to  be  signed  by  James  A.  Seddon,  Secretary  of  War;  the  whole 
pwportmg  to  be  certified  under  the  hand  of  J.  'P,  Benjamin 
SeBretarj  of  State  of  the  Confederate  States  of  America,  lûid 
unier  the  great  seal  of  the  Confederate  States  of  America.  The 
wlo|e  marked  Z  ;  (to  the  production  of  which  documente,  and  ©f  a^ 
préof  in  support  tiiereof,the  Counsel  of  the  United  States  çWect, 
as  bemg  irrelevant,  irregular,  and  illégal.  Objection  rese^ySi  by 
theJudge.)  .  ^^    '' 

jBeing  shown  and  having  examined  the  said  papere,— I  «iftlliat 

I  Ireceived  them  from  Secretary  Benjamin,  Secretary  of  .^tate 

the  Confederate  States.    He  affixed  his  signature  to  them  in  'ifly 

Bsence.     I  did  not  part  with  them  until  I  handed  them  to  the 

[onorable  Mr.  Abbott  yesterday.     The  seal  was  affixed  at  thàt 

/tf'^'T"*'^**  ^'  ***®   ^**'  ^^^^  ^^  *^®  Confederate   States  was 
/^affixed  to  them  when  he  signed  thwn  ;  and  he  called  my  atten- 
faon  to  the  seal.     This  was  in  the  office  oi^e   Secretary  of 
State.     I  volunteered  to  go  for  the  paperaClbr .  the  prisoneft. 
I  çamed  a  missive  from  Colonel  ThompsonjVho  arranged  with 
me  about  going,  and  supplied  the  funds.*    I  called  upon  Mr.  Ben- 
jamin about  an  hour  after  my  arrivai  in  Rîchmond,  and  he  infonûed 
me  that  the  papers  had  been  sent  by  another  messcnger  on  the  dày 
before.     He  said  that  the  papers  had  been  sent,  that  every  thing 
had  been  sent,  necessarv  to  establish  their  belligerent  charactef 
and  that  they  acted  under  orders.     The  following  day  I  oalled 
on  the  Président,  by  appôintment,  and  asked,  that  to  insure  the 
safe  delivenr  of  the  papers,  I  might  be  entrusted  with  a  duplicate 
as  a  second  messenger.     He  readily  acquiesced,  and  expressed 
great  anxietv  that  they  should  be  so  placed  as  to  escape  détection, 
suggesting  that  the  paper  containing  the  great  seal  should  be  photo- 
graphed  upon  tissue  paper,  so  as  to  take  up  less  space.    Mr.  Ben- 
jamin being  présent,  explained  that  the  muster-roU  would  take  so 
much  space,  that  the  size  of  the  great  seal  would  be  of  no  consé- 
quence.    He  stated  that  he  had  sent  the  orders  under  which  the 
young  men  had  acted,  previous  to  their  making  the  raid.     He 
thought  that  thèse  papers  would  be  fully  suflicient  to  justify  their 
doings,  and  that  they  would  hâve  full  justice  done  them„he  had  no 
doubt.     The  Président  stated  that  the  prisoners'  orders  under 
which  they  acted  having  been  sent,  constituted  superior  testimony 
to  any  subséquent  ratification.    He  expressed  some  surprise  as  to 
the  resuit  of  Burley's  case.    I  explained  to  him  that  in  that  case 
^e  J«^^  was  only  a  Police  Magistrate,  accnstomed  to  de  ji  only 
"^Qi  petty  larcenies,  but  that  m  this  case  it  was  before  a  Superior 
Court  Judge  who  would  appreciate  questions  of  International 


/• 


|i!    11-!. 

lit  ;h 


^^i^    **  ■'ut.  -4 


t- 


Lj 


\, 


216 

law.  He  Btated  as  his  reason  for  not  iaguing  bis  order  in  tliU  oase 
that  hw  gênerai  order  în  the^urley  case  had  been  diai^tairded, 
and  be  seenied  piqued  and  indignant  at  that  fact.  I  told  bim  tbat 
if  ihe  Confederate  States  bad  been  as  near  neigbbors  as  tbe  Fédéral 
States,  tbere  woold  bave  been,  probablj,  a  différent  resuit  I  looked 
at  tbe  Dapers  in  the  Department  of  State,  to  see  tbat  tbe  names 
were  affixed  ;  tbey  are  precisely  in  the  same  condition  now  as  wheii 
I  received  theça  ;  I  made  no  request  for  any  particular  pape^  ;  I 
merely  presented  tbe  message  with  which  I  wasentrusted  ;  I  neWr 
read  tbe  letter  with  which  I  was  entrusted,  and  do  not  know  its 
contenta^éxcept  that  I  undorstood  that  it  was  a  letter  of  introduction, 
&nd"ctCHitained  tbe  names  of  the  prisoners. 
•  Thé  Counsel  for  the  United  States,  objecting  to  the  whole  of  this 
évidence  as  Ulegal  and  incumbent,  décline  to  cross-examine  this 
witness. 

(Signed)  S.  F.  CAMERON. 

George  S:  Conger,  of4he  toVn  of  St.  Albans.— On  the  l9th 
October  last,  I  was  in  St.  Albans,  aforésaid  ;  J  remember  the  raid 
on  tbat  day.    The  first  thing  I  saw  was  putting  some  fellows  on 
the  green.    They  were  put  on  the  green  by  force,  with  revolvers 
at  their  heads.    There  was  a  guard  set  over  them.    I  saw  them 
takmg  borses  off  some  double  team.    I  tben  saw  some  ten  or  twelve 
of  them  coming  out  of  the  American  House  yard  on  borse-back. 
fhe  town  s  people  were  running,  some  one  way  and  some  another, 
scared  seemmglv.    I  beard  the  discharge  of  fire-arms.  '  I  di8char<red 
fir^arms  myself  on  that  day.    I  fired  at  the  raiders.    I  was  anSed 
with  the  breech-ldading  carbine.    At  the  lower  part  of  the  town, 
just  above  one  of  the  banks,  I  was  firing  at  thèse  parties.  *  I 
foUowed  them  down  the  street,  firing  at  them,  about  a  qùarter  of  a 
mUe,  and  kepfe  firing  at  them  ail  the  way.     I  beUeve  some  othei-s 
of  the  town  s  people  were  firing  at  them.     I  saw  two  or  tljree  of 
tbe  town  s  people  fire  at  thenr.    I  could  fire  five  or  six  shots  a 
minute  with  my  carbine.     I  thought  those  men  were  Confederate 
raiders.    I  thought  so  because  they  comraenced  firing  at  the  people 
there  ;  they  fired  at  me  several  times.    And  wben  the  people  called 
to  anns,  they  said  thèse  were  Confederate  raiders.     It  was  not  a 
running  fight  until  they  got  out  of  town.     I  saw  no  one  firing 
at  them  after  they  got  out  of  town.    I  saw  one  house  on  fire  after 
they  passed,  it  was  a  store  ;  this  was  a  couple  of  minutes  after 
they  passed  it.    I  did  not  hear  any  of  the  raiders  déclare  what 
they  were.     I  am  nineteen  years  of  âge. 
Couns6LJafc.^he==^UMted- States  décline  to  Cross-examine  the^ 


witness. 


(Signed) 


G.  S.  CONGER. 


M  À 


4« 


X 


--S» 
^:d 


^^iStÀ^l  tJ.ié  h  •£!i,l  ^ 


■  is^    .i>*Mïsî 


"  \ 


216, 

WilUam  Af.  Cleary  is  r6^alled  as  à  '  witness  :— I  recognize  tho 
fleal  appended  to  the  cortificato  aigriod  J.  P.  Benjaiçin,  Secrotary 
of  State,  as  being.thô  great  |eal  6f  tho  Confederate  States  of 
'  Amenca.     I  do  not  remeiûber  having  apf^  the  seal  of  the  War 
Office,  before.     I  hâve  in  mjr  possession  tho^ori^nal  of  the  paper 
first  annexed  to-  the  said  cerfificate,  being  instructions  to  Lieut 
Young  to  report  to  Messrs.  Thompson  and  Clay,  which  I  now  pro- 
duce, and  whiph  is  identified  by  the  letter  R.     The  reason  why  I 
did  not  produce  this  paper  or  the  othor  papers,  N  and  0,  at  an 
earher  stage  of  the  trial,  that  ia,  when  delay  was  first  asked  tqsend 
to  Richmond,  was  that  after  a-  consultation  I  had  with  the  Counsel 
for  thedefence,  it  was  decided  not  to  produce  them  until  an  oppor- 
tunity  had  been  afforded  for  getting  papers  from  Richmqnd,  becauso 
it  was  feared  that  the  production  of  those  papers  might  involve  Mr 
Clay  in  a  charge  of  a  breach  of  tho  laws  of  neutrality.     I  cannot 
^state  that  it  is  the  gênerai  rule  of  the  War  Office  to  issue  more  than 
one  letter  of  instruction  tQ.  tlie  same  persons  at  the  same  time.    I 
hâve  known  of  its  being  dône,  but  it  is  rather  the  exception.     It 
has  been  done  jo  cases  when.  the  duty  was  to  be  performed  outsido 
ot  the  Confederate  lines,  from  whence  thére  might  be  difficulty  iii 
communicating  with  the  Governmenfr4n  the  event  of  any  unforeseoh 
occurrence,  so  that  the  jntent  of  the  sendîng  of  the  party  might  not 
be  defeated  ;  and  the  object  is  to  enable  the  party  sent  to  obtain  his 
orders  m  différent  ways.     I  know  of  a  fact  which  would  account  for 


PAPER  R. 


m 


Confederate  States  dp  America, 
ç  War  Department. 

f   Richmond,  Va.,  June  16th^  1864, 
JTo  Lieut.  Bennett  H.  Youno, 

liiEUT.— You  hâve  been  appointed  temporarily  Ist  Lieut.  in  the 
ProvisionaJ  Apny  for  speciad  service. 

You  will  proceed  without  delay  to  the  British  Provinces,  where 
you  wiU  report  to  Messrs.  Thompson  and  Clay  for  instructions. 

Yqu  will,under  their  direction,  collect  together  such  Confederate 
soldiers  who  hâve  escaped  from  the  enemy,  not  exceedi;ig  twenty  in 
number,  as  you  may  deem  suitable  for  the  purpose,  and  will  exécute 
•  such  enterpnses  as  may  be  entrusted  to  you.  You  will  take  caro 
to  commit  no  violation  of  thfe  local  law,  and  to  obey  implicitly  their 
mstructions.  You  and  your  men  will  receive  from  thèse  gentle- 
men, transportation,  and  the  customary  ratiops  and  clothinir  or 
commutation  therefor. 

JAMES  A:  SEDDON, 

Sëc.  W  War- 


Va.,  June  16th. 


*;!)■« 


W' 


Bennett  H.  Young  being  referred  to  Mr.  Claj  as  weli  as  tô  Meflëre. 
Thompson  and  Clay,  namely,  bocause  he  was  a  particular  favorite 
of  Mr.  Clay,  and  waa  appointèd  to  a  commission  on  ^is  recommen- 
dation.  I  know  that  he  waa  appinted  for  service  withjn  the 
enemy's  Hues,  that  is  within  the  Northern  States,  l  kndw  that 
Mr.  Clay  recommended  him  fbr  that  commission  for  this  purpose. 
,  Question:— Arcr  you  or  are  you  not  aware  that  Lient.  Young 
proceeded  to  Richmond  in  May  last  with.the  recommendation  of 
the  Hon.  Mr.  Clay  for  his  appointment  to  a  commission  in  the  Con- 
federate  army,  for  the  purpose  of  uudertaking  raids  against  towns 
on  the  Northern  frontier. 

Objected  to.     Objection  m'aintained. 

Counsel  for  the  defence  déclines  to  cross-examine  the  witness. 

(Signed)  WM.  W.  CLEARY. 

Lewis  Sanders.—l  know  Lieut.  Bennett  H.  Young,  one  of  the 
prispners  ;  I  know  the  Hon.  Clément  C.  Clay,  Jun.  ;  I  was  présent  at 
sôveral  conversations  botween  said  Mr.  Clay  and  saîd  Lient.  Ben- 
nett PL  Young,  between  the  29tli  of  August  and  the  9th  of  Septem- 
ber  last.  I  heard  conversations  between  them  about  the  attack  on 
St.  Albaiis,  which  was  subsequently  made  on  tiie  19th  of  October. 
The  purport  of  thèse  conversations  was  that  Young  was  to  bum 
the  town  if  possible,  and  sack  the  banks.  I  am  aware  that  Mr. 
Clav  fumished  Young  with  money  to  cover  his  expenses  at  the  said 
raid.  Mr.  Clay  sent  me  a  choque  for  $400  or  upwards  for  Mr. 
Youn^,  towards  the  expenses  of  the  said  expédition.  I  gave  him 
the  said  chèque,  and  he  got  the  money  on  it  in  Montréal  ;  this  was 
about  two  weeks  before  the  raid.  I  had  no  personal  knowledge  that 
he  got  the  money,  but  I  présume  he  did,  as  there  were  funds  there 
to  meet  it.  ^^~^" 

Cross-éxandned  under  reserve  of  objection. 
The  conversations  above  referced  to  between  Bennett  H.  Young 
and  Mr.  Clay  ail  took  place  in  Mr.'Clay's  private  résidence,  in  the 
town^of  St.  .Çatherines,jn  Uppér  Canada.    This  chèque  that  I 
referred  to  #08  drawn  on  the  Ontario  bank.     I  believe  itcame  to 
me  m  a  lëtter,  and-my  impression  is  that  it  camp  from  Québec.    It 
is  my  impression  that  the  chèque  was  drawn  on  the  Ontario  bank 
hère.    I  was  not  présent  when  it  was  presented.    I  thînk  that 
chèque  was  signed  by  Mr.  Clay.    It  was  signed  simply  «*  Ô.  Ci  Clay, , 
Jr.,"  and  the  chèque  was  payable  to  the  order  of  Bennett  H.  Young. 
I  believe  I  saw  the  said  Bennett  H.' Young  in  Montréal,  about 
three  days  before  the  raid,  which' took  place  on  the  19th  of 
„^<^^^^^r  last.    L  also  saw  the  said  Marcus  Spurr  4a  JHeatroal  ^ 
about  four  days  before  the  said  raid.    I  did  not  see  any  of  the 
other  sud  piisoners  at  any  time  near  the  period  of  thfr  raid  ;  and 


y 


■I; 


ë-^i^SJ^  /--W*^^  iftj<«55^'  -v  * 


r^ 


o 


K 


:'s,    218 

j^è  nearest  time  to  that  date  Aat  1 8aw  any  of  them  wm  in  July 

SL    wZ  "*?  i-!  ""^  ^^'^^^^  *^-  S^S^r  «^t  Windsor  iî 
Canada  West.    I  did  not  know  any  of  the  other  prisoners  now 
hère  before  the  said  raid.     I  recoUect  meeting  a  bSr Tf  Mt 
Teavis  at  Chfton  House,  before  the  raid  in  July  last. 

(Signed)  LEWIS  SANDERS. 

\^/t^^'  ^•^'^^ff^:—^  waa  admitted  to  practice  at  Washîna- 
toa  City,  m  the  District.of  Columbia.    The  crime  of  treasZi 

if°TÎ*^-;Vt^r*  ^."1^'^  '^^  ^'^  Section  of  the  Co^tiSn  Ôf 
^Z^^l  f*'*'f  f  ^Tt^'i,' T^i«ï^  ^'^  be.found  in  the  vXme 
of  «le  Statutes  of  the  State  of  Vermont  fyled  in  this  cause. 

otV^^r:?  *  Yjf  "V^""  ^^^^''^  *  *°^  "t"*ted  in  the  State 
theTS<î%t  *  '""^  ¥^  °f  """^  "^""g  composed  of  citizens  of 

m  the  name  of  an  enemy  of  the  said  United^States,  plunder  ban^ 

^««wcr.— I  should  say  so.  - 

Counsel  for  the  United  States  decUne  to  cross^xamine. 

<•     "•  J.  B.  F.  DAVIDGE. 

cl<S*  ^'*'  "^^^^  ^^""^  '***''*'®*^  *^®  ^^"^  *'°'"  *^®  ^^^^«n^'e  to  be 

Mr.  Bethune  iû  rebuttal  called  : ' 

o^f***.  f*?;. -^«^'-Iknow  Bemiett  H.  Young  and  Marcus 
Spwr  two  of  the  pnsoners  now  m  Court  ;  I  first  became  acquainted 
withthemmthe  fall  of  1863,  then  in  Toronto;  they  werbo^h 
residing  there  at  that  time.  The  said  Bennett  H.  ^oZand  I 
Y^ni''^''^*!?  *^!  ^e  boarding-house.     The  said  BenSett  H. 

swear  that  he  rertained  m  Toronto  more  than  three  months  afler  I 
beoame  acquam^wi^  him.    I  knew  hiîn  for  three  m3Ss 
I  saw  the  said  Bennett  H.  Young  either  late  in  the  spring  or  in 

8i^"^^J'T^  ^"T  Î7  ^*^  *.''*P"^  ^«>^  '^^  Northern 
otates.    Ibeyhadjlunderstood,  been  pnsoners  ofwar. 

JOHN  CHAS.  DENT. 

~~^mmmZ:iminion.^ imow  Bennett  H.^^ff7oneôf Se 
prisonert  now  m  Court,  and  I  first  becatoe  acqnâinted%ith  him  in 


'1.1 


« .(.  A-     ,^      .? 


^- 


219  .  / 

thé  fall  of  1863.  We  boarded  together  about  three  months  in- 
Toronto.  The  ^d  Young  was  at  that  time  stndying  in  the 
Univeraitv  at  Toronto.  He  remuned  in  Toronto  until  early  in'  the 
spring,  when  he  told  me  that  he  was  going  to  the  city  of  Richmond, 
About  two  months  after  that  I  saw  him  again  in  Toronto.  I  only 
Bilr  him  for  a  short  time  after  that,  for  aboat  a  week  or  two. 
The  Counsel  for  the  defence  décline  to  cross-examine. 


(Signed) 


WILLIAM  L.  WILKINSON. 


WUliam  Donohue. — I  am  à  Sergeant  in  the  Water  Police.  I 
know  one  of  the  prisoners,  viz:  Squire  Tumer  Teavis.  I  made 
his  aoqnamtance  in  the  hôtel,  St.  Johns,  Canada  East,  a  few  days 
before  the  raid.  I  had  no  conversation  with  him.  I  saw  no  other 
of  the  prisoners  tHere  before  the  raid. 

Coonsel  for  the  defence  dechne  to  cross-examine  the  witness. 

WILLIAM  DONOHUE. 


"  Eraitui  Wjfman. — I  know  the  prisMier  Bennett  H.,  Young  ;  I 
became  acquamted  with  him  during  the  fall  of  1868.  I  under- 
stpod  him  then  to  be  résident  in  TdTonto,  and  attending  the  Univer- 
aity  there.  I  cannot  positively  say  so,  but  to  the  best  of  my  recol- 
lection he  continued  to  réside  there  for  six  months  after  I  became 
acquiûnted  with  him.  I  saw  him  late  in  1863.  I  do  not  remem- 
ber  seeing  him  Aère  in  1864.  I  left  Toronto  in  Febrùary,  1864, 
and  came  to  réside  hère.  I  met  him  on  or  about  the  lôth  October 
last,  on  ^e  train  comin^  from  ^oronto  hère  ;that  is  the  last  that  I 
saw  of  him  until  after.his  arrest. 
The  Counsel  for  the  defence  décline  to  cross-examine. 

E.  WYMAN. 

IfcUon  Mott.—l  recognizè  two  of  the  prisoners,  Bennett  H. 
Yotuig  and  William  H.  Hutchinson.  Thèse  two  persons  arrived  in 
Company  with  four  others  on  ttie  evenmg,  I  think  of  the  eléveijth'of 
October  last,  and  put  up  at  Léonard  Hoele's  hôtel,  in  St.  Johns, 
C.E.  Thèse  persons  remained  for  some  days  at  the  hôtel,  léaving 
dS6]Mtftttely  at  diflbrènt  times.  The  person  who  now  answers  to 
tbe  namo  of  Hutchinson,  and  who  re^tered  his  name  as  Jones,^ 
1^  about  five  o'dock,  and  as  I  understood,  by  the  train  going  to 
Rôose's  Point  ;  Ûiis  was  on  the  18th  of  October  last.  I  do  not  know 
m  fe^cm  day  on  whioh  the  sald  Young  left.  They  ail  left  scat- 
^értaj^;  I  haih^ontefBfitJeh  iHttt  tEe  me  (JMIlîiîg'BImself  Jofléff" 
àH  itie  hotel,  who  answers  tv  the  name  of  Hutchinson  ;  while  86 
Htliig  at  the  said  hotel,  he  was  reoeiving  newspapere  from  St.  Albans, 


,     ^*^  ^i^  % 


220 

Vermont.     In  the  course  of  conversation  he  enquired  the  relatire 
distances  of  Frelighsburgh  and  PhUipaburgh  from  St.  Albans 
.  Ihe  tounsel  for  the  defence  décline  to  cross-examme, 

NELSON  MOTT. 
Henry  Allan.    I  recogni^e  Marcus  Spurr,  one  of  the  priaoners  • 

'    l^stL^Z  ST^ÏÏ''!;^^  ^''^?*^  ^^^  ^*«''  ^  *^«  lutter  par 
of  January,  1864.    He  had  no  business  that  I  know  of  ;  he  waa 

there  for  two  or  three  months  after  that.  I  saw  him  hère  în 
Montréal  lastOctober,  before  the  raid  at  St.  Albans;  he  wM 
fltaying  at  the  St.  Wence  Hall.  I  saw  him  m  Montréal  two  " 
three  days  before  the  raid  at  St.  Albans. .  ' 

rhe  Counsel  for  the  defence  decUne  to  cross-examine. 

HENRY  ALLAN. 

Jame$  L.  Sogle.~l  formerly  resided  at  St.  Johns,  Canada 
Ea8t;IkeptanlioteltheKeinthemonth  ofOctoberlaat.  Irecognixe 
wm^o^Pï?TJ?  "^'^  iû  Court,  viz:  Bennett  H.  Young  and 

They  arnved  with  four  others,  and  ail  put  up  at  my  hôtel.  They 
arnved  on  the  Hth  day  of  Oçtqber  last,  and  registered  their  namS 
m  the  register  which  I  there  kept,  and  which  f  now  hâve  in  Court. 
Ihe  pnsoner  Hutchinson  registered  his  name  as  Jones,  I  think  J 

â:^,!?^'  rîf  ®^  *"^''®^  /''  *  ^^y^  *^^  t^ee  of  them  left  on  the 
Sahirday  of  the  same  week  as  I  left  home.   I  canûôfr  say  (when  the 

tlî'^l  fe**;  v^P^^^*^¥°§  **  *«  '^^^'^  thé  ent^so  made 
^nî   ^    Hutchinson  is  W.  P.  Jones,  Troy,  N.  Y  ' 

The  Counsel  for  the  defence  décime  to  cross-examine.   I 

J.  L.  HobLE. 

Thursday,  Feb.  16,  IsljS. 

fl.i«r*  ft""^  ^'^  ^^  prosecution  expeoted  more  witnespes,  but 
thèse  not  bçmg  présent,  lie  argued  that  the  prosecution  Uà  fuUy 

of  oneBrec^;  and  that  he  apprehended  aU  the  prisone^were 

r^  A  V  ^  e^dence  showed  aU  were  in  towii  on  that  lay,  «s 
ST^  J^'**fT'*!.*"^x*^''  *^^  robbeiylefl  the  toX'^Ud 
l5f«  ^f*r  '  n*°  ^'^'  %  *^*»  proceede'd  to  quote  Hawkin's 
Sr  t  î.\^~^'  J^P-  »4,  sec.  4,  p.  148  ;  kale,  vol^  1,  p. 
684  ;  Ist  Bishop,  «ec.  267  ;  also  2nd  Bishop,  for  robbei^,  qioting 

uw  .cuuMis^irHB  uiiiuujuuou  01  plonder.  They  ail  came  thelé  fi»!- 
the  purpow  of  plundering  (he  banks;  and  as  gn  incident  Ko 


221 

ptonder  of  one  of  them,  they  had  also  plundered  the  complainant  ; 
and  they  ail  *  left  there  together.  As  they  had  assèmbled  there 
nith  intent  to  commit  one  felony,  ihdj  were  ail  alike  guilty,  if  Any 
of  the  party,  so  assèmbled,  had  committed  another  in  the^oun^  of 
the  proaecja^on  of  the  one  which  they  intended  t»  commit.  He 
citea,  as  an  illustration  of  the  doctrine,  {m  instance  in  which  parties 
were  prosecuted  for  a  breach  of  the  peace  with  intent  to  resist  t^e 
police,  in  Which  the  Court  held  ail  equally«guilty  of  the  murder  of 
a  person  aiccidentally  killed,  though  some  of  the  party  tvere  distant 
and  even  out  of  view.  With  thèse  authorities,  he  submitted  the 
prosecution  Were  entitled  to  a  warrant  of  commitment  for  extra- 
dition against  the  prisoners.  They  (the  prosecution)  intended  to 
await  the  arguments  of  their  leamed  friendà  on  Monday  ;  and  if,  in 
replv,  the  IproSecution  quoted  any  authorities,  it  would  be  the 
pfivilege  of  the  defence  to  answer  them.  It  would  also  be  the 
priiàlege  of  the  Crown  prosecutor  to  sum  up  the  whole  case  after- 
wards. 

Bon.  Mr. \  Abbott  said  it  was  to  be  regretted  that  the  prosecution 
had  not  told  them  the  grounds  they  intended' to  take; 

Mr.  Bethune  said  that  the  ground  would  be  thfit  the  prisoners 
haid  committed  robbery. 

Bon.  Mr.  [Abbott  continued  that  the  disadvantltge  would  be,  that 
they  would  hâve  to  argue  and  fortify  every  point  of  law  and  of  fact, 
not  knowing  W^hat  was  disputed  or  what  denied  bv  the  prosecution.. 
This  would  grèatly  lengthen  the  arguments  for  the  defence  which 
might  oth^wise  nave  been  confined  to  the  real  points  in  issue! 
The  case  of  th^  pros^tion  would  only  be  dereloped  in  their  reply, 
and  this  again  Would  be  unjust  U>  the  prisoners. 

Ms  Bonor  sud  that  if  necessary  he  would  hear  the  counsel  for 
the  defence  agatn.  ' 

Mr.  Bethune  idid  not  care  how  often  they  spoke.  .  The  case  U> 
be  maintûned  W^as  one  of  robbery.  ' 

Mr.  Johmon  ^ûd  t^ere  was  no  particolar  form  of  procédure  in 
such  cases. 

Bon.  Mr.  Ai^tt  said  that  Mr.  Bethune  had  propo^d  that  Mr. 
Johnson  should  stim  un,  but  he  denied  that  the  Crown  prosecutor 
had  any  such  rigat.  "The  real  prosecutor  was  the  United  States, 
and  •fter<  they  wore  heard,  the  Qase  bught  to  be  left  to  his  Honor. 

Mr.  Johmon  said  that  with  respect  to  tiie  office  of  Crown  prose- 
cutor, that  might  ï|e  safely  left  to  him. 

Bù  Bonor  thoukht  that  the  Crown  officer  was  entitled  to  reply. 
Tbe  case  wm  a  Crown  case,  m  so  far  as  it  was  the  dufy  of  tib» 
»d^  anything  wroDg ;  JmLihat-whateyer-Mr^ 
Abbott  had  to  say  l^e  would  hear  him. 

The  enqoiry  was  Ithen  adjonmed  tiU  Monday  at  10.30.' 


y  II 


'"      ÏSi, 


,.'i^A;"?i),:-\i>-i4i    i' 


.v.i<fS,;. 


■V  ;  ,j 


%^ 


.  \ 


222 


Mr.Kerr  for  the  defence,  handed  to  the  Judge  and  côungel  & 
prmted  pai^  contoimng  the  foUowing  propoaitioM  aiid  âuthori*ie«  : 

1.  Xhat  Bennett  H.  Young  waa  on  the  ninefceênth  of  Ootober 
^t,  a  comnuasioned  officer  in  the  service  oî  the  Confedenite 
States  m  command  of  a  party  of  enroUed  Confederate  States  trooM 
t.Ti^  i!  temtoi7  of  the  United  States;  a  country  with  which 
the  Confederate  States  were  at  war,  quoad  which  contest  Her 
Majesfy  had  declared  her  détermination  to  maintain  »  strict  and 
impartial  neutrahty  between  the  contending  parties 

A-  \I^^i.'H  *"^  ^S""®**  ^^i  Young  waa*  ordered  and 
durected  by  his  Supenor  Officer,  to^hom  he  had  been  referred  for 
Instructoons  tjr  the  Govemment  ôf  the  Confederate  States,  to 
gakè  the  raicf  upon  St.  Albans,  now  under  investigation.— The 
Hon.  C.  C,  Clay's  letter  6  OcC,  1864. 

r  ^:  J^*.  *^«  *«»*^  «^ticle  of  the  Ashburton  Treaty  ïs  strictlv 
limited  w  its  opération  to  the  crimes  recognized  by  the  common  Jai 
«f  both  countnes  under  the  names  thereto  applied  in  the 
treaty. .  And  that  the  whole  of  the  facts  and  circumstences  of  the 
case  must  be  exammed  into  and  weighed  by  the  judge,  in  order 
that  he  may  be  satisfied  that  the  act  of  the  icused  can  be  jX 
designated  as  ona,of  the  crimes  mentioned  m  the  treaty.— RShbiiw 
ahas  Nash's  cafte.  Wharton.  E^te  BoUman  I  sVaS 
MarrfuiU  on  the  Consfatutbn,  pp.   alto  41.    The  Peoplé  « 

£!^  202.  '''''  PP*  ^^  *'  ^^'    ^  ^P-  ^^'' 

N  4.  fiât  acts  of  hostili^  committed  by  the  troops  of  the  Confede- 
SSiJfïf'/  ™°o«°i^«\ï^  logèrent  within  the  territoiy  of  the 
Fédéral  States,  the  other  beUigerent,  and  poUtieàl  offences  arising 
^it  of  popukr  commotions  msurrections,  or  civil  war  do  not  comi 
mthin  the  provisions  of  the  treaty.-Presdt.   Tyler's  messaire. 

ô.  Ihat  the  United  States  no  longer  exist.  Thjit  since  the  rati, 
fication  of  Ae  treaty  of  1842,  five  or*six  States  Zb  been  admiSS 
mto,  and  nme  or  ton  States  hâve  seceded  from  the  Union— thïtt 
between  two  portions  of  the  .former  repubUc,  civil  war  bas  been 
tuLlJ^'''',  W»-;?".^  *»^»*  «^^reby  the  sovereignty,  which 
«tSi"*"'^  *î-*^  ^r\V^  immedïately  upon  the^oSmence- 

«   ^u  f  j;"'*^^''^'*-".^  B?^lan»qm,pt.  4,bap.'Y,  §88,  p.  210. 
f^lf  A     ,    l^"'  "?''  "î*^?  ^tirem  the  Fédéral  Stateâ  and  «&e 
Confederate  States  is  what  L  caUed  a  perfect  war.    That  bc^  • 
parties  ^e  beUigerents,  and  entitled  to  aU  belligerent  rights  riven 
oy  war  to  govereign  govemments.— Wheaton,  40.  628  624  620 


=TterUraraflflWl«l»twêën  two^nÂtionsor govem 


ii;.   <* 


233 

municipal  criminal  codes  of  the  bellièerenfcs  are  silent  and  inopera- 
tive  quoaà  acte  committed  by  the  troops  of  either  of  the  belligeronte 
within  the  territories  of  the  other.  The  iaw  of  nations  alone  fumiahinig 
the  rules  for  the  govornment  of  armies  or  detwîhed  bodies  of  thwps 
on  hostile  territor^.— 3  Burlamaqui,  pt.  4,  cap.  6,  §  8, 12, 13, 14 
15, 16.  2  Azum,  pp.  64, 18.  2  Rutherforth,  B-  2,  cap.  9,  5  loi 
pp.  640,  646,  &  551.  ^    '^     ' 

8.  That  under  the  law  of  nations,  in  what  is  calleà\ïi  perféct  war, 
the  raie  is  that  the  person  of  the  enemy  is  liable  to  seizure,  and 
his  property  to  confiscation,  seizure,  or  capture,  wherever  found.— 
3  Phillimore  j)p.  116,  116,  120,  m  nàtlt  (182,  8  &  9  note  a.') 


«     , 


Laïq-ence's  Wheaton,  pp.  518,  519,596.     Lee 'on  Captures,  p. 
lA-i      «_,.-_  _,^.,_  .         ^-      3  Rutherforth,  p.  549, 


Miller  V.  The  Resolu- 


141.     B^kershoek,  chap.  4,  p.  27. 
Bas  V.  Tihgy,  4  Wheatôn  Rep.  p.    40. 
tion,  2  Dallas,  R.  21.  ^ 

9.  That,  under -the  law  of  nations,  members  of  one  belligérent 
nation  may  lawfuUy  kill  members  of  the  other  belligérent  nation,  or 
seize  or  capture  their  property  wherever  found,  except  in  neutnd 
territory.  Lawrence's  Wheaton,  p.  618.  2  Rutherforth  5  18,  p 
578,  §  19,  P.-S94.  3  Phillimore,  p.  137.  Burlamaqui,  p.  19&, 
201.    Jecker  v.  Montgomery,  18  Howard,  114. 

10.  That  the  commission  of  an  officer  in  the  army  of  a  belligé- 
rent power,  authorizes  him  and  tho  men  under  his  command  to 
engage  in  every  açt  of  .hostilit^  against  the  other  belligérent,  per- 
misBible  under  the  law  of  nations.— 1  Kent's  Com.,  pp.  94  &  96 
Halleck,  p.  386.  Lawrence's  Wheaton,  pp.  626,  627.  Lieber's 
Inatractions,  No.  57.  1  Opin.  of  Attys.  Gen.  pp.  46,  81.  26 
Wendell^p.  675.     2  Rutherforth,  pp.  570,  580. 

11.  That  if  such  commissioned  oflScer  violâtes  insjtructions, 
limiting  him  and  his  command  to  certam  acte  of  hostUity,  and 
exceeds  the  bounds  therein  prescribed  for 'him,  he  is  guilty  of  an 
offence  against  his  own  govemment,  whose  rules  for  his  guidance  he 
has  infnnged  ;  but  he  cannpt  be  reg^rded  as  a  criminal  by  the  other 

'  belligérent,  or  by  neutiral  nations  ;  for  he  is  innoceùt  of  any  oflfence 
iosàmi  international  law.— 3  Phillimore  p.  137.  Bynkershoek,  p. 
184.  2  Rutherforth,  pp.  596,  697, 598,  599.  Wheaton,  pp.  247, 
*4o,  249. 

12.  That  the  only  govemment  having  power  to  enquire  whether 
«ich  çommismoned  oflBcer  has  exoeeded  his  instructions,  or  violated 
the  rules  laid  down  for  his  gnidanoe  in  his.  oonduct  towards  tii© 
enemy,  is  the  govemment- which  oommissioned  him.— Bynkershoek, 
~    134.    2  Rutherforth,  pp.  695,  6,   7,   8  &  9.    Wheaton, 

of  Âf      ""  — 


Si7, 


8&9.    1 


Opinions  of  Attys.  Gen.,  pp.  46,  81.    Westlake's 
p>  120.. .  2a-Wendeïl^  pr^^ 


18.  Hiat  &yi<)|»ti6n  of  neataJ  ri^tf,  either  bj-oi^ptore  in  119a- 


t 


^  Il 


'  '      1  i' 


•ïm 


I  i; 


'^î 


1     1     .- 


,  f.jt^  -viè,  ,j| 


224 


m. 

h<  ' .  ■■■'  ' 


tral  temtory  of  enemy'a  property,  or  bj  thé  useof  neuti-al  terfitory 
for  the  passage  of  troops  or  as  the  starting  point  of  an  expédition 
agaînst  the  enemy's  country ,  doea  not  deprive  the  troops  so  viblatinâ 
neutrality  of  their  belligerent  character.     The  beliigêreiit  whosfe 
propetty  bas  been  captured  has  no  rights  in  ihe  matter,  and  àuoad 
him,  captures  so  effected  are  légal.     Such  violation  of  neutrality 
cannot  affe<ît  in  any  way   the   non-responsibility  of   belligerent*- 
troops  to  the  ordinary  tribunals,  for  hostile  acts.— Historicus    d 
52, 153,  154, 155,  158, 159, 162.  1  Kent.  p.  119.    (Jrotiuslib 
III.,  cap.  4,  §8.    .Bynkershoek  b.  1.  cap.  8.     2.  Ortolan,  p!  256 
The  Anne,  3  Wheat.  Rep.  485  per  Story  C.  J.    The  Etrusco  8 
Rdb.  162.     Brig  Alerta  vs.  Blas  Momet.  8.  Peters  Rep.  425 
La  Amistad  de  Rues,  6  Wheat.  Rep.  389,  per  Story.     meaton 
p.  722.    Judge  Tallmadge  on  McLeod  casé,  26  Wendell,  dd..663 
to699.  ■  '  't-f  ""*> 

14.  That  a  neutral  goveriiment  cannot  take  cognizance  of  or  • 
pronounce  a  judgment  upon,  any  act  of  hostility  committed'by 
troops  under  the  command  of  an  officer  commissioned  by  one  belli- 
gerent, within  the  territoryof.ihtfother  belligerent. — Lawrence's 
Wheaton,  pp.  40,  42  in  notis.    Bynkershoek,  pp.  115,  116  in 
notis  119,  in  notis,  Notià.     26  Wendell,  p.  688  &  9.     Vattel'  3 
lib.  7,  cap.  §  103,  110.     Halleck,  p.  73.    -8  PhUlimore,  201* 
202.     2  Burlamaqùi,  pp.  198,  203,     Lee  on  Cw)ture8,  pp:  109 
138.    2  Rutherforth,  650,  561,  662,  658.    2  AÎni,  p.  §4. 

16.  That  iî,  a  neutral  nation,  on  the  demand  of  one  bel- 
ligerent, deUxers  up  to  that  belligerent  soldiez  and  officers 
of  the  other  belligerent,  who  hâve  commit^  acts  of  hostility  in  the 
country  of  the  belligerent  demanding  such  extradition,  on  the^ 
grouna  that  such  acts  Were  crimes,  Such  pretended  neutral  nation 
thereby  violâtes  its  neutrality  and  espouseS  the  side  of  the  bellige- 
rent to  whom  extradition  is  made. — 2  Burlamaqùi,  p.  193.  2 
Rutherforth,  pp.  652,  663.  Halleck,  p.  629.  Byiikershoek  pp. 
69, 118  in  notiêi  '  ft" 

Î6.  That  as  a  civil  war  existed  between  tàne  Fédéral  States  and 
the  Confederates  States  on  the  19th  October  làst  ;  Her  Majesty 
had  proclaimed  Her  neutrality  in  the  war  ;  and  Bennett  H. 
Touing  was  tiien  a  commissioned  ofiicer  in  command  of  a  detach- 
méntof  Conféderate  troops,  operating  under  orden  from  his  Govern- 
ment withm  the  territory  of  the  Fédéral  States,  the  act  of  Bepnett  H. 
Young  ma  his  command  cannot  be-measnred  by  the  provisions  ôf 
the  mumcipal  criminal  code  of  the  enemies  of  his^knntiy  ;  nor  can 
our  Courts  or  o£Scia|s  hold  his  ÇMsts  to  be  crimerwithin  thé  purvieu 
of  the  Aflhbarton  treatv.— U.  8.  v.  Palmer.  4  Wheaton,  p.  62 
J17^  -g3i»t  the  MsemMage  of  CittteBft^flf^  the  United- gtateBrfty-^ 


the  purpoee,  on  behalf  of  the  Conféderate  States,  of  sacking  and 


*  ^i- 


226 


Constitution,  p.  42,  44.    U.  S.  v.  Burr.  do.  pn  61  62  fift  «T 
66,  69,  70,  73i  91,  82.  ^^      '     '  ^^'  ^^' 

i^r.  ^m-  mid  r—To  me  bas  been  confided  by  my  leamed  frienda 
Aédu<iyof opemngthecasefoi-the prisoners.  Itia.fcan assure your 
•    Honor,  with  fear  and  trembhng  that  I  take  upon  myself  tbe  respJnsi- 
bihty  necessanly  attaching  itself  to  my  position,    ifot  that  I  beHeve 
iliat  onr  cause  is  weak,  not  that  I  am  afraid  that  ourjustclaims  wiU  be 
ignored  ;  but  the  great  importance  of  the  principles  involved,  the 
'magnitude  of  the  mtereôts  at  stake,  and  the  almost  boundiesa  field 
for  research  and  argument  which  spreads  itself  before  the  counsel 
employed,— ail  tend  more  thorfughly  to  bring  be^e  each  of  us  his 
own  utter  mcapacity  to  render  their  meed  of  justice  to  the  riffhts 
of  our  chentB.     That  this  is  ope  of  the  most  imprtant  cases  fver 
presented  for  Jhe  considération  of  anv  of  our  Courts,  will  not  be 
demed  ;— that  it  has  already  produéed  a  greater  effect  upon  the 
Mswons  and  préjudices  of  men  both  in  Canada  and  the  former 
Umted  States,  than  any  other  cause  célèbre  in  this  Province  will 
.'readUy  be  admitted.    It  has  been  the  moving  cause  of  a  cdl  to 
anns  withm  the  Colonjr.    It  may  justly  be  looked  upon  as  the 
on^  of  those  fears  which  culmmated  in  the  déniai  of  asvlum  to 
pohtical  refugees  by  our  Provincial  Parliament.    From  it  the  care 
fui  observer  can  trace  the  origmof  the  pressure  brought  to  bear 
upon  our  Judges,  to  mduce  them  to  dégrade  the  paUadium  of  the 
hkW  mto  the  mmist^r  of  the  temporaiy  passions  of  the  Government 
and  the  servile  instrument  of  the  interests  of  the  United  States' 
The  very  papere  produced  by  the  prisonCrs  were  bought  by  thé 
pnce  of  blood,  for  one  of  the  messengers  despatched  to  Richmond 
to  ohtam  mformation  for  your  Honor,  but  the  day  before  yesterdav 
expiated  the  crimes  of  beinga  loyal  soldier,  a  true  friend,,anda 
gallant  patnot,  on  the  gallows  at  Johnson's  Island.    Your  Honor  • 
ean  read  in  Hhe  treatment  of  the  messenger,  the  certein  fete  of 
thoae  who  sent  him  on  his  errand.    Cursed  be  the  hand  which 
îrt'f*uH  °^o<*°f«^«  United  States.    Can  it  be  wondered  at 
Aen  that  ^le  knowledge  of  ôur  repponsibility  in  the  grave  task  we 
hâve  undertaken  should  weigh  so  heavily  upon  us  ;  that  it  should 
hke  a  j^  hang  over  us  whithersoeyer  we  may  go.  But  aU  that  we  ask 
— aU  that  we  pray  for— is^^that  it  may  not  so  deaden  our  enerries 
M  to^render  us  incapable  of  laying  before  you  fairly,  manfuBy  Snd 
fîttâiMv  aU  ^e  pomto  m  this  most  interesting  cas^,  with  the  prin- 
ciides  of  law  ^ch  define  the  positions  of  the  prosecutors.  the  nri- 
MUftlfB  làpif  ti^f  i"*^iy  r .  >    "  r" 

The  question^  extradition  of^oriminalt  by  the^  authorities 
of  the  country  within   the   limita  of  which  they  had  souijht 


\  I     ! 


tii 


^"..1' 


•  m 


^AAj^M.if^S  V*  v<..«4r. 


'  -HM-t     Jff       f  àAi-     ■*t|*»'^^«' 


22Ô 

refuge,  to  the,  authonties  of  the  country  wîthîti  whoae  terri- 
toriôs  they  had  committed  a  crime,  was  one  which  fonnerlv  occu- 
piod  the  attention  of  Bta,te8men  and  publicistB  throughout  the  ciri-v 
liaed  world.    Like  every  other  important  principle  of  what  may* 
be  called  mtemational  expediency,  the  existence  of  the  r^ght  to 
d^gaand  was  by  some  authors  denied,  by  others  admitted.    The 
question  however  was  shrjouded  in  obscurity,  and  the  greater  num- 
ber  of  the  nations  of  the  world  hâve  pronounced  against  the  exis- 
tence of  any  such  right,  by  entering  mto  treaties  by  which  they 
»  a^eed  under  certain  conditions,  to  deliver  up  persons  to  the  autho- 
rities  of  the  other  parties  to  the  treaty,  accused  of  havmg  com- 
mitted crimes  within  their  jurisdiction.    It  is  unnecessary  hère  to 
enter  into  a  détail  of  the  treagga^entM^d  into  between  différent 
States  wherein  an  extradition  stipulation  appeared  ;  it  is  sufficient 
to  say  that  Great  Britain  has,.  at  différent  periods,  entered  into  two 
on  that  subject  with  the  United  States.    The  provisions  of  the 
first  made,  m  1794,  and  ,known  in  American  works  as  the  Jay 
Treaty,  was  in  its  extradition  clause  almost  precisely  similay  to 
the  tenth  clause  of  the  Ashburton  Treaty  ;  m  fact  no  différence 
of  any  moment  was  apparent,  save  the  promise  to  vest  jurisdic- 
tion in  the  judges  and  inagisti-ates.    It  was  limited  in  its  opéra- 
tion to  twelve  ^ears,  and  expired  without  any  great  use  having 
been  made  of  its  provisions.     The  only  came  célèbre  ariâing 
under  it  was  that  of  Nash  alias  Robbins,  to  which  référence 
will  be  made  hereafter.     In  1842,  the  Ashburton  Treaty  was 
entered  into  between   Great   Britain   and   the  United  States, 
by  the  .tenth  clause  of  which  it  was  stipukted  and  agreed,  that 
on  demand  the  high  contracting  parties  should  deliver  up  to 
justice,  ail  persons  who  bemg  charged  with  the  crime  of  mur- 
der,  or  assault  with  intent  to  commit  murder,  or  piracy,  or  arson, 
or  robbery,  &c.,  &c.,  ahould  seek  an  asylum,  ôr  be  -found  within 
the  territories  of  tiie  other,  provided  that  this  should  only  be  done 
upon  such  évidence  of  criïbinality,  as  according  to  the  laws  of  the 
place  where  the  fu^tive  or  person  so  charged  should  be  found, 
would  justify  his  appréhension  and  committid  for  trial,  if  the  crime 
oroffence  had  been  there  committed  ;  and  it  was  further  provided, 
that  the  évidence  of  criminality  should  be  heard  and  cons^ered  by 
the  Judge  or  ma^trate  issuing  the  warrant,  and  that  if  on  such 
hQanng,  the  évidence  shpuld  be  deemed  sufficient  to  sustain  the 
.charge,  then  thè  justice  waa  so  to  certify  to  the  proper  executive 
authority,  m  ord«r  that  a  warrant  of  extradition  mignt  issue. 

It  has  been  ruied  in  this  case  that  the  proceedings  were  rightly 
institutedunder  the  Provincial  Act  24  ViCyCap.  6  ;  rt  becomee  thfliL„ 
my  duty  t»  ençiun  what  àré  the  power»  of  the  officiais  mentii^ed 
in  that  Act,  with  référence  to  the  examination  of  the  suffidenoy  of 


9# 


227 


the  fivideiice  to  Bustam  the  charge.    In  order  so  to  do,  it  becomes 
neeÔBsary  to  examine  ihe  powers  and  duties  of  our  Justices  of  the 
Pe^é  ont  of  sessions,  in  their  examiiïations  mto  charges  of  indîotable 
offences  against  persons  brought  before  them.    By  the  80th  clause 
of  192^cap.  Con.  Stat.  of  Canada,  it  îa  provided  that  in  aU  such 
cases  the  justace  or  justices  shaU,in  the  présence  of  the  accuséd 
person,  take  tiie  statement  on  oath  or  affirmation  of  those  who  know 
the  fects  and  circumstances  of  the  case.    By  the  fifty-seventh 
article  it  is  provided,  that  if  id  the  opinion  qf  the  juëtice  the  évi- 
dence is  sufficient  to  put  the  party  upon  bis  trial  for  an  indictable 
offencej  although  it  may  not  raise  such  a  strong  presumplaon  of 
gmlt  as  would  induce  such  justice  or  justices  to  commit  him  for 
tnal  mthout  bail,  then  mch  justice  shaU  admit  the  party  to  baU  • 
the  déduction,  therefore,  from  the  évidence  the  justice  bas  received 
from  those  who  know  the  facts  and  circumstances  bf  the  case,  in 
order  to  justify  hia,committal  for  trial,  must  be  one  raismg  a  stronc 
presumpùon  of  guilt  against  the  accused.    Oan  it  be  pretended 
that  the  justice  having  three  alternatives  to  choose  from,  ail  founded 
on  the  comparative  strength  of  the  évidence  j^ainst  the  prisoner 
viz.,  either  to  discharge  him  absolutely,  to  bind  him  over,  or  to' 
commit  him  for  trial,  that  that  discrétion  does  not  in  fact  give  him 
power  to  examine  and  weigh  the  évidence,  in  order  to  discover  to 
which  course  the  charàcter  of  that  évidence  forces  him  ?    If  from 
toe  nature  of  the  évidence  adduced,  which  in  itself  is  incontroverti- 
ble,  it  is  apparent  that  to  commit  him,  or  even  to  bind  him  over 
would  expose  the  country  solely  tô  the  costs  of  a  trial,  which  must 
resuit  m  the  acquittai  of  the  prisoner,  the  duty  of  the  justice  is 
clewrly  to  discharge.    If,  on  the  other  hand,  no  évidence  bas  been 
rendered  changing  a  prima  fade  case  of  felony,  it  is  the  duty  of 
the  justice  to  commit.    Can  it  be  pretended  that  a  man  who  bas 
acted  as  pnJ)lic  executioner  at  the  exécution  of  a  criminal  condemned 
by  a  compétent  court  to  death,  would  not,  were  he  apprehended  for 
miilrder,  be  aUowed  before  the  magistrate  holding  thé  preUminary 
examination,  to  produce  the  record  of  conviction  and  the  document 

provtng  his  own  status  as  executioner  ;  and  would  it  be  pretended 
that  the  magistrate  had  no  right  to  examine  into  such  évidence,  and 
that  it  was  his  duty  to  commit  for  trial  for  murder  because  it  was 
proved  by  the  prosecution  that  a  man  had  been  hanged  by  the  / 
pnsoner?  Numberless  other  cases  may  be  cited  in  which  the/ 
°!î^®  *j7<>«a*ed  by  the  prosijpution  is  shown  in  aU  its  true  ab' 
surdify.  This,  let  it  be  remembered,  applies  solely  to  cases  arisina 
imd«  our  municipal  law,  where  the  injustice  is  suffered  by  one  4f 

JwMip^t^tB^ and  where  his^comœittal' J»^ teial,  evea fer 
offenoe  of  which  he  is  not  guiltv,  can  only,  at  the  most,  entail  upon 
him  the  temporary  inconvenienc^  of  imprisonmentinone  of  our  gaols  ; 


X\ 


-•i:H; 


■'  mi 


,-^ÂJ).i. 


m^'i   i^'  i  ■'  **■. 


•ff^Jg^pSi*  <i-W(r^  'Z,f^j^^^,^~%£ 


228 


Y'/ 


but  when  the  extradition  to  a  foreign  power  of  a  man  Who  bas  com- 
mitiiedno  crime  againstour  law,  but  who  seeks  eolely  in  a  British 
colony  an  asylum  fîrom  the  enemies  of  bis  country ,  and  who  trusta  bim- 
self  to  the  national  bonor  of  Great  Britain  for  protection,  ia  de- 
manded,  it  becomea  ua  to  %q  exceedingly  careful,  lest  in  our  anxiety 
to  concilitate  powerful  neigbbore,  we  are  not  induced,  in  the  élo- 
quent words  of  Lord  Palmèreton,  to  violate  the  laws  of  boapitality, 
the  dictâtes  of  bumanity,,and  the  gênerai  feelings  of  mankind. 
Let  uB  beware  lest  we  should  be  hereafter  universdly  and^deaerv- 
edly  stigmatised  as  diabonored,  by  our  hasty  conduct  in  this  case. 
The  necessity*  then  for  a  careful  and  searching  examination  of 
the  évidence  in  an  extradition  case^  is  apparent  ;  ail  the  facts  and 
circumstances  are  to  be  looked  at  witb  the  greïii^st  care,  in  c^er 
that  the  magiatra|«  may  be  fully  satisfied  that  the  prisoner  really 
has  committed  thë  offence  of  whlch  he  is  accused  ;  be  must  beware 
lest  in  a  case  of  manslaughter  he  commît  for  murder  ;  he  must  take 
care  that  the  offence  is  not  larceny  whilat  he  commits  for  robbery  ; 
but  abovè  ail  he  must  be  satisfied  that  the  man  is  guilty  of  Éhe  crime 
V  with  which  he  is  charged.    In  the  examination  of  this  caae,  if  we 
,  can<«[\|ote  authorities  from  American  authors,  and  cite  précédents 
'\^  from  American  reports,  the  United  States  govemment  surely  will 
not  complain  of  our  drawing  from  their  arsenals  weapons  wherewith 
to  combat  their  pretehsions.    The  judgments  of  their  Suprême 
Court  are  acknowledged  in  England  as  of  the  vejy  highest  au- 
ihority,  are  cited  at  the  bar  as  of  the  very  greatest  weight,  and  are 
listened  to  by  the  Bench  with  the  greatest  respect  and  attention. 
The  very  brightest  omamént  of  that  court,  he  who  in  bis  lifetime 
was  acknowledged  by  ail  parties  as  the  greatest  judge  who  ever 
adomed  the  bench  m  the  United  States,  and, who  was  pronounced 
by  Mr.  Justice  Story,  in  an  address  to  the  bar,  tïr^  tije  expounder 
of  the  constitution  of  that  republio,  was  the  late  0||bf.  Justice 
Marshall.     His  intellect  was  so  essentially  judicial^hat^^èvety  ' 
dictum  of  his  is  precious;  his  intuitive  perception  of  law  was  so"" 
marveUous  as  to  enable  him  to  discover  the  most  recondîte  prin- 
ciçles  at  a  glanée.    When  then  we  hâve  on  record  his  deEberaté 
opmion  on  any  point,  we  may  ahnost  defy  the  most  wily  sophist  to 
shake  our  coimaence  in  the  streneth  of  the  position  iàkea.    One  of 
.  the  most  masterly  efforts  of  that  distingnished  man  was  made  in  the 
\  argument  before  Gongress,  when  the  question  of  the  extradition  of 
«a  man  named  Nash,  alias  Bobbiipis,  came  up  for  considération.    It 
woold  appear  that  Nash  was  one  of  tiie  orew  of  H.  M.  S.  Hermione, 
which  was  taken  possesnon  of  bymutineers,  who,  afterkilling  soâe 
of  theoticers,carried  the  vessel  into  a  fljynîob  jnrf     Years^after^^ 
a  deïnimd  for  the  éxintdition  dP  Bobbins,  raâ^r  the  tréaty  of  1794, 
was  made  on  the  American,  b^  the  British  Govemment,  on  a 


•"^» 


liii 


229 


«harçe  of  murdering  one  of  the  oflScers  of  that  vessel  on  the  occa- 
sion m  question.     Nash  was  extradited,  notwithatanding  he  set  up 
in  his  defence,  and  endeavored  to  prove,  t}iat.he  was  an  American 
seaman  who  had  been  impressed  on  board  the  Hermione,  and  that 
if  was  for  the  purpose  of  regtûning  his  liberty  that  he  had  joined  in 
the  mutiny.     Great  excitement  raged  in  the  United  States,  the 
caae  was  brought  before  Congress,  and  it  wàa  in  defence  of  his  friend 
and  patron,  George  Washington,  that  the  late  Chief  Justice,  then 
Mr.  Marshall,  deUvered  a  speech  on  the  subject,  which  for  a  time 
silenced  ail  opposition.    Amongst  the  positions  taken  by  him,  was 
the  followmg  :  "  That  had  it  been  proved  that  Robbîns  was  an 
American — had  been  impressed  on  board  the  Hermione,  an4  had 
been  guilty  of  homicide  in  endeavoring  tq  regain  his  liberty,  such 
homicide  would  not  hâve  amounted  to  murder,  and  he  could  not 
hâve  been  extradited,"— thereby  clearly  showing  that  in  his  opinion 
the  for^ble  impressment,  if  proved,  should  hâve  been  taken  mto 
considération,  and  that  ttie  person  who  rendered  the  décision  was 
bound  to  weigh  ail  the  évidence,  even  of  justification,  and  to  give 
eflfect  to  aU  the  ciroumstanccs  surrounding  the  act,  by  which  the 
enormity  of  the  crime  might  bave  been  diminished  or  miti^ted. 
The  next  case  in  which  any  point  of  importance  waa  decided  is  that 
of  Christiana  Cochran,  who  on  the  demand  of  the  British  Govern- 
ment, was  extradited  in  the  year  1843,  on  a  charge  of  murder. 
There  the  counsel  for  the  accused  interposed,  as  an  objection,  to 
an;f  further  prqceeding  before  the  commissioner,  a  plea  of  insanity, 
which,  in  the  words  of  the  (4th  Atty.-Gen's.  opns.,  p.  202)  Atty- 
General's  opinion,  was,  after  a  full  and  impartial  investigation, 
overruled.    This,  then,  is  a  corroboration  of  the  opinion  expressed 
by  Chief  Justice  Marshall.    The  next  case  from  which  we  can 
obtwn  light  is  that  of  the  Gerrity.    The  schooner  J.  L.  Gerrity 
was  an  American  vessel,  bwned  in  the  Northern  States.    Previous 
to  her  departure  from  Matamoras,  a  neutnJ  çort^  for  New  York,  a 
number  of  men,  amongst  whom  were  the  pnsoners  Timan  &  iJ., 
^ni^d  passages  to  the  latter  port.    Two  days  after  the  vessel 
fed^^^&e  passengers  rose  in  anps,  declared  to  the  captwn  that 
"you  are  now  to  consider  yourself  à  Confederate  prisoner,"  took 
possession  of  the  vessel  and  its  contents,  mi  sent  the  càptain  and 
crew  adrift  îh  one  of  the  beats.    They  were  apprehended  at  liver- 
^pool  on  ft  charge  of  piracy  on  ihe  high  seas,  and  their  iBxtradîtâon 
was  demanded  nnder  the  Ashburton  Tréaty.    ïi'or  them  it  was 
contonded,  lt|^.— ^Thatràracy  on  the  high  seaawas  not  an  extra- 
ditable  offenee  ;  2nd — [Hiat  they  were  acting  on  behalf  of  the  Con- 

and  a  recognised  belligerent.    It  must  be  remembered  that  tihe 
only  proof^  their  belligerent^padty  was  the  admission  made  by 


•Hl 


1^ 


i^V  ^*t -''^  1  ^)»tv^     >■'*'* .  ■>  ' W iit^i^  «■ 


w 


Vf 


280 

the   captain  of  the  Joseph  G  errity,  of  the   déclaration  to  him 
by  one  of  thé  passencers  that  he  waa  to  consider  himself  a  Con- 
federate  prisoner.    No  commias^na,  no  instructions,  from  -that 
belligerent  govemmet^  were  produce^,  nor  waa  it  proved,  that 
they  were  natives  wrâubjects  of  the  Oonfederate  States;  in  fact 
,the  presumption  waa  that  they  were  British  subjects.    And  yet  the 
Chief  Justice,  who,  it  must  be  remarked,  differed  from  the  majority 
of  the  Court  with  respect  to  the  first  point,  on  which  they  were  dis- 
charged,  observed  with  référence  to  the  second,  that  "  I  concur 
that  persons  although  not  subjects  of  a  belligerent,  and  although 
violating  the  laws  of  their  own  country  by  theu-  interférence  ia,  its 
behalf,  are  not  therefore  ohargeable  with  piracy.    But,  at  the  same 
time,  they  cannot  proteot  themselvea  fix)m  the  conséquences  of 
piratical  acta  by  aseuming  the  character  of  belligerenta.    The  pri- 
aoners  averred  that  th<^  were  acting  on  behalf  of  the  Confederate 
^  Government,  and  Mr.  James  ia  right  in  arguing  that  this  is  the 
same  aa  though  they  haft  hoisted  the  Confederate  flag  ;  but  we  also 
know  that  the  flag  of  a  country  is  frequently  hoisted  by  pirates  for 
the  better  carrying  out  of  their  schemes,  and  tve  mist  look  at  ail 
the  circumatancea  to  see  whether  or  no  the  ohject  of  the  prisoners 
wa»  a  piratical  one. .  I  cannot  say  that,  that  waa  so  cléarly  nega- 
tived  aa  to  ouat  the  justice  of  jurisdiction  to  commit  the  prisoners." 
We  bave  hère,  the  opinion  of  the  Chief  Justice  of  England,  saying 
that  the  judges  on  habeaë  corpus  are  bound  to  look  at  ail  the  cb- 
cumatances  in  order  to  cMne  tb  a  proper  judgment  on  the  nature  of 
the  act.    He,  moreover,^admit8  that  the  déclaration  of  the  priaon- 
era  that  they  were  acting  on  behalf  of  the  Confederate  Government, 
^egativea,  to  a  certain  extent,  the   preaumption  that  they  were 
ates  ;  but  he  cannot  say  that  that  déclaration  without 'proof  of 
omission  or  inatructiona  from  the  Confederate  Government,  so 
clearly  ne^tived  the  presumption  of  piracy  aa  to  ouat  the  justice 
of  hia  jurisdiction  to  commit;  but  bis  opinion  maintaina  most 
strongly  the  principle  that  &  prima  f  acte  case  against  a  pàrty  may, 
be  80  destroyed  by  évidence  of  belligerency  as  to  oust  the  justice 
of  hia  jurisdiction,  thereby  giving  to  the  juatjce  the  judicial  power 
of  appreciating  and  weighing  the  teatimony.    Mr.  Justice  Black- 
bum  in  the  same  caae  niakea  use  of  the  foUowing  remarka  "  there 
was  évidence  ot  yixeuoyjure  gentium  and  also  évidence  that  the  act 
waa  a  belligerent  one  in  fnrtherance  of  the  cauae  of  the  Confede- 
rstes,  who  are  belligerenta  and  ao  recognized.    The  act  then,  ao  far 
as  the  évidence  goes,  waa  either  pxMjJure  gentiim,  in  which  caae 
we  are  not  empowered  to  ^ve  them  up,  or  it  waa  the  act  of  belli- 
gereptfl.  and  therefore  triable  neither  Jiaïae  nor  flloft^T^m/'     It 


mût  be  adioitted  that  there  really  was  very str^'-wôijençerf 
pBnoy,and  very  weak  évidence  of  belligerency  in  the  casem  que^ 


%s 


% 


.V. 


281 


tion,  tixe  onl^  fact  to  show  the  latter  oharaoter  beiag  furniBhe<]l  by 
the  déclaration  of  the  prisonera,  which  the  Ghief  Juatio9  likeneci  to 
fhe  hoisting  of  a  flag.  In  the  case  of  a  vessel  attackine  aind  cap- 
toring  a  French  merchantman,  such  vessel  would  not  oe  relieved 
from  the  imputation  and  conBequeAces  of  being  a  pirate  by  showing 
that  at  the  commencement  of  the  ^ttoek  she  hoiâted  a  Mezican  flag, 
if  she  did  not  produce  either  heWommission  as  a  man-of-war  in  the 
Méxican  navv,  or  letters  of  marque  authorijdng  her  to  enlise  as  a 
privateer.  Air.  Justice  Blackburn  very  justly  remarks  also,  that 
if  it  were  the  acts  of  belligerents,  it  was  triable  neither  in  Ëngland 
nor  elsewhere,  therél^y  showing  conclusively  that  in  his  opinion, 
proof  of  the  belligerency  before  the  magistrate  took  the  case  out  of 
the  treaty.  The  next  case  demanding  our  att^ition  is  that  of  the 
Roanoke,  which  was  taken  possession  of  on  the  high  seas,  by  a 
pariy  of'  Confederates  under  the  coifamand  of  an  officer,  who  had 
t&ken  passage  in  hèr  from  a  neutral  prt.  They  were  arrested  at 
one  of  the  West  India  Islands  on  a  cnarge  of  piracy.  Ât  the  pre- 
liminary  exammation  before  the  ipagistrate,  after  évidence  of  the 
act  of  pretended  pirac^i  had  been  gone  into,  the  officer  in'command 
prodncëd  his  commission  and  instructions,  and  thereupon  the  Attor- 
ney-General  for  Her  Migetty  abandoned  the  prosecutien  and  thêy 
were  discharged.  In  iÉe  natural  order  of  things  we  now  come  to  the 
case  which  without  doubt  is  the  ch&tal  âe  hataille  of  my  friends  on 
the  other  side,  the  one  oontaining  accorcOng  to  their  ideas  the  conceç- 
trated  prinoiples  of  law  applicable  to  the  facts  of  the  St.  Albans  raid, 
and  one  so  perfectiy  analogous  that  it  absolutely  puts  an  end  to  ail 
our  pretensMMis.  I  mean  the  Burley  case.  The  opinions  pronounced 
b^  the  iTpper  Canadian  Chief  Justices  and  Judges  hâve  been  sub- 
mitted  to  ue  décision  of  the  civilized  world,  and  hâve  become  a  por- 
tion of  the  property  of  the  nations  of  the  earth.  Those  opimons, 
therefore,  are  now  open  to  critical  examination,  aad  anv  one  wish- 
ing  to  satisfy  himself ,  upon  the  responsibility  incnrred  by  belliger- 
ents in  visiting  neiitral  countries,  would  be  forced  into  investigating 
the  correctness  of  the  principles  therein  laid  down  as  regulating  tàe 
ooune  to  be  adopted  m  ail  cases,  wherein  extradition  should  be 
demanda.  The  questions  naturally  arising  in  that  case  were  of 
?a8t  importUQce,  atteoting  not  only  we  prisonerr^but  m  their  consé- 
quences touohing  the  question  of  peace  or  war  between  Great  Bn- 
tiun  and  the  United  Sixtes.  The  law  of  the  Pirovince  of  Canada  was 
not  the  only  syàtem  of  jurisprudence  involved,  ]^ut  tiie  International 
law  of  tiie  globe  presented  itself  for  discusàon.  The  rights  of  bellige>- 
rents,  thé  duties  of  neutrals,  the  soverwign  powen  of  govemments 

considération  and  settiement.    For  the  nonce  <èen  the  judiciary  of 
Upper  (knada  lost  their  oharaoter  of  Colonial  judges  and  oocuiâed 


■»  î 


t<iki 


jj^ 


.JtUl  ■ 


f^-:Ji\ 


V  •■•' 


ëU    n  ^ 


232 


r'^,''' 


lll. 


liii: 


./ 


the  diatmguished  position  of  expounders  of  the  principtes  of  Inter 

?  ^  •dome<ljjr  the  late  Lord  Stowell  in  England  and  Chief  J™^ 
tice  MarshaU  ai^Jttdgo^Story  in  America.  To  thoae  eilenilS 
M  Bociety  indebted  ma  great  degree  for  the  maintenance  oVS 
ÎS  •  '  °^  ^^*«T- ^«°*^  Ï^^^J  ^Wch  regulate  the  int^^ou^Tf 
îw  .  î  Sf  ^*  '^'^  ""  ""^  '  "^^  *^  *^«°»  «  d««  *î>e  crédit  of  ha^g 
dwBipatedthe  many  erroneous  théories  advanced  by  publiciataw 
fommg  part  of  the  law  of  nations.  To  them  aJso  is  due  tffpS  Tî 

to  ZTZ  "^^'t  ^^  ««^«  ^î*^°  tï^«ir  ken?^'the 

whether  the  récent  judgment  on^e  appKcation  foc  Habeaa  .CoZas 
m^Burley's  ca^e  is  based  upoiTthe  principles  of  law  ap&Se 
thereto  or  whether either  through igno^nce  or  aijaae  subEce 
to  popular  opimon  or  to  Govermnental  pressure,  the  judTe»  of 
ofUpper  Canada.have  sjiown  themselves  unworthy  of  thi  Son 

S7r.SPf'  ^  ï\*^!^  °^*''  occasion  examine^  withdrSSî 
Je  pnnciiJeswhich  bythose  judgesare  declàred  a«  goveming  S 

fied  by  the  fects^proved,  and  whether  the  principles  invoked  byX 
™S«1  r  ""J"^^^  ^l  erroneously  applied.  oSe  first  propofita^ 
made  m  the  orderis  that  the  question  of  the  actbeing  a  B^ZZ 
act  w  one  solely  for  Ihe  considération  oFa  jury  in  the  uîitod  K 

Th^irL""^  if "f  r"*'  ""  "°*  authorized  thereby  to  wage  aU  acte 
of  hortihty  on  the  lakes  or  sea  against  the  propeity  and  wrsonflrf 

ZélZtai-fVT^^r  déviâtes,  in  his  discrétion  fiSm  the 

fluwLS^ffl  ^'^  A^""'  ^  «^'**"<'®  ^^  instruction,  the 
subordmate  officers  and  men  under  his  command  by  obeying  o^ew 

r^.LÏS'^'-*^-*^?^^'^  ^'^  *'^«™«*«'  Of  belUgerente^^annr" 
responsible  cnnunaUy  for  any  aoto  they  may  comiit  which  in  tSe 

&3;r''^? 'i-r*"*"  °'^«*"  The'^four&is  thati  WoliSon  of 
Caij^neutaihty  aggravâtes  crime  committed  in  the  jurisdicS,» 
of  the  Umted  States.  The  fifth  is  that  a  judae  in  a  muSS 
couniy  haa  a  right  to  inqui,«  into  any  deîiS  by  the  ISÎ 
^rfnf?^*'""*  •ï^''*"  ^"'?  commissioned  in  wai^,  dm  HxepZ 
pwt  of  his  commiMion,  on  tLe  demand  of  the  other  belligerentiad 

^St'3^- «/"Sr  «if  \f?,<ïo^«ti»g  he  committX^îffCce 
J^nst  the  laws  of  (he  other  beUigerent,  and  order  him  to  be  oon- 

•uch  prodeediniES  bv  the  ludm  ar»  «a*  ;«  »;^i„*: x-ti—  »^-7'  rT* 


—7  r--r~*-'~»j  "w  cAuwjuuoQ  lo  nis  enem^ 
■och  prodeedin»  hy  the  judy>  are  not  in  vjoIr' 

referto  some  of  those  cames  célMn„MUok  la^re  mdttïd  the 


eA^>j>tteiKt'.kiiaËiàAihi.i'. „'âfeMlttâ&»^%i    i   .>''  ^' 


r>^.* 


288 

Upper  Canadian  Bench  and  Bar  so  famons  throughout  the  Vorld, 
Heaven  koows  that  we  poor  Lower  Canadians  hâve  no  preténsion 
to  cope  with  them  in  any  field  of  either  industry  or  talent.  WeVare, 
■mih  ail  due  self-abasement  be  it  epoken,  an  inferior  race  fittei  hj 
nature  for  the  barren,  bleak,  misérable  country  we  inhabit.    Content 
to  live  and  die  as  our  fathers  did  before  us,  we  exist  without  ahy 
of  that  noble  fire  wich  occaâionally  leada  men  to  dodeeds  refleci' 
honor  on  their  native  land.    We  plod  on  in  the  weary  round  of 
liticB  and  law  most  congenial  to  our  tempéraments  ;  we  cling  to  âïe\ 
Coutume  de  Paris  ;  we  révérence  Blackstone  ;  we  dislike  novelty, 
and  we  abhor  new  fangled  ideas  of  jurisprudence.  We  hâve  been  ri(U- 
culed  and  laughed  at  for  our  stolidity.     We  hâve  been  abused  for 
our  ignorance.  We  hâve  been  told  that  the  Bench^of  Upper  Canada 
ifl  composed  of  men  renowned,  alike  for  their  talent,  learmng  and 
integrity.     We  hâve  been  assured  that  celebrated  men  cluster  at 
the  bar  of  that  portion  of  the  Province,  thick  as  grapes  in  a  vinery. 
We.have  been  advised  to  listen  to  the  words,  pregnant  with  research, 
and  leamiog,utJteredby  the  ministers  of  justice  in  that  favored  por- 
tion of  God's  earth. — We  hâve  been  recommended,  in  lieu  of  studîy- 
iny  the  speeches  of  Erskine,  Curran,  Burke,  or  Plunkett,  to  open 
ourears  to  the  ravishing  melody  of  the  utterances  of  Upper  Cana- 
dian counsel,  and  from  the  models  of  éloquence  and  slyle  by  tiiem 
set  before  us,  to  form  our  ideas  of  the  persuasiveness  and  poweaa 
of  Demosthenes  and  Cicero.     We  had  fondly  fancied  that  had  the 
Upper  CanacUan  %nch  but  the  opportunity,  the  exceeding  talent 
and  leaming  of  its  members  would  hâve  been  so  displayed  before 
the  eyes  of  the  whole  world,  that  scientific  men  throughout  Europe 
and  America  would  hâve  hiùled  them  as  M^rthy  recruits  to  the  sélect 
band  of  international  jurists  whose  writi^s  hâve  shed  light  on  the 
darkest  pages  of  the  law  of  nations.    We  in  this  Lower  Province, 
would   hâve    humbly   rejoiced  at  the  glory  thus  reflected   on 
dur  native  land  by  its  distinguished  citizens,  and  the  cosmopo-  ■ 
litaà  réputation  of  Canadians  would  hâve  kmdled  a  blaze  of  en- 
thusiasm  in  our  fHgid  bosoms.    But  alas,  how  bas  the  reality 
deoeived '\Ï8  '     On  two  différent  occasions  the  Upper  Cai^adum 
Bench  bas  h^.tried,  and  on  both  found  wanting.    The  case  of 
Andersen,  the  negro  apprehended  for  slaying  a  mad  in  Missouri, 
who  endeavored  k>  arrest  Um  whilst  making  his  esoape  from  slaveiy, 
was  the  first  whidi  shoôk  our  confidence.    There  the  Court  of 
Queen's  Benoh  laid  -down  tiie    monstrous   doctrine    that  Âey 
«ould  not  take  into  considération  the  other  faots  depriving  his  aot 
of  the  onminal  compleiion,  but  were  bound  by  Aie  mère  faot  of  hia 
^awfef^^wTâ  num,  to  ^omiirtim  for  ettiiâîficm.  '  A  trial  inlT 
ahMreholdini^  country  being  «  necessary  oonsequraee,  and  Ander- 
«m'i  exeoutioa  being  the  ouy  coiiolusiim  they  naturally  coold  expeot 


.-'-> 


* 


?ï*i.j 


Y  ^  ^  ^u^,^ 


iiiiiir 


I  illlh- 


'<i-, ..  ivif  ]  ■^',  '- 


■i: 


Il      > 


iw  as 
Juris- 
icaged 


284' 

from  that  action.    Not  content  ^th  Aus  pérverting  the 
applicable  to  the  negro's  act,  they  ayrogated  to  thernselves 
diction  to  which  they  had  no  rieht,  andcommitted  the  i 
upontheirown  warrant  for  extradition.    Public  opinion  in  jLsmuu 
roused  bv  this  frightftd  injustice,  pronounced  itself  so  sfaJSy 
agamst  the  judgment  and  action  of  the  Upper  Canadian  (foiS^ 
thata  writ  of  Habeaa  Corpus  was  issued  from  the  Queen's  iench 
m  Bngland,  to  brmg  Andersen,  and  the  commitment  under  fhich 
he  was  then  held,  to  England  before  a  tribunal  competekt  to 
appreciate  and  understand  the  principles  of  law  appUcabTe  to 
the  facts.     Struck  with  dismày  at  the  issue  of  the  Eriglish 
*mt, the TJpper  Caïadian  Jtidges resolved to  burkeall such inlesti- 
/  ^taons,  and  from  the  Court  of  Common  Pleas  issued  a  wMt  of 
i    Habeas  Corpus  under  which  the  commitment  of  the  Court  of  Q  Jeen's 
Bench  was  quashed  ^  havmg  been  made  without  jurisdictioJ  and 
Anderson  was  thereupon  discharged.     Such  were  the  facts  ank  cir- 
cumstances  of  the  first»  case  in  which  Upi^r  Canadian  Judgdb  had 
an  opportumty  of  showing  their  acquaintance  with  the  princiiïles  of 
^temabonal  law.    It  must  be  admitted  that  it  was  a  misérable 
hnale  to  the  grand  display  of  leaming  and  argument  exhibiled  by 
tbeCourt  of  Queen's  Bench,  when  they  declared  that  it  w^  their 
duty  tojîommit  him  for  extrjidition  under  a  warrant  which.Ilearly 
they  had  no  right  to  issue,  to  be  obhged  to  caU  m  their  breèren  of 
the  Common  Pleas  to  free  them  from  the  embarrassing  position  in 
wluch  they  then  were,  thanks  to  their  own  ignorance  ;  but  Upper  ^ 
Canadian  creduKty  is  quite  equal  to  Upper  Canadian  vanity,  and 
the  pubhc  of  that  portion  of  the  Provmce  were  stUl  more  deeply 
persuaded  of  the  intellectual  faculties  and  leaming  of  their  judges 
bythe  exceodmgly  Sharp  and  skilful  manner  m  which  they  had 
managed  to  élude  the  action  of  the  English  Courts  in  the  nmtter. 
But  to  retum  to  Burley's  case,  the  Upper  Canadian  Bench  taking 
no  heed  to  the  outburst  of  indignation  in  Enghmd,  and  in  faôt 
throughout  the  civilized  world  at  their  ruling  in  the  Anderson  case 
above  referred  to,  agam  in  this  case  advanced  the  doctrine  that  the 
judge  or  magistrate  in  Extradition  cases  could  not  consider  any 
évidence  which  might  be  given  before  him  tending  to  destroy  the 
^mouaness  of  the  offence  charged.    They,  m  fact,  decided  that 
It  by  any  testimony  it  is  proved  in  any  Extradition  case  where 
ae  change  is  murder,  that  a  man  bas  been  killed,  that  it  is  nb  part 
rf  the  duty  of  the  judçe  or  magistrate  to  iàquire  into  any  other  of 
r®^'^"°w*«ice8  tending  to  show  either  that  it  is  mandaughter  or 
nutijable  homicide,  those  are  questions  according  to  their  doctrine 
Jff  ™g  .oooMderation  of  a  juiy  of  the  State  whereia -th»^  aet^wa»  - 


!T™ïPa.  ?7  »  P«ri*7  of  wiêoning,  if  arëbellion  wen  to  br^ 
ont  m  the  Staite  of  New  York,  and  men  were  kiUed  by  the  rebels, 


Èi^^dtia,:, 


18$ 

who  ghoiild  afterwardè  aeek  refuge  in  Canada  and  be  demanded  bj 
the  United  States  ^thorities,  our  judge  or  magistrate  shoold 
(Knmoit  for  Extraditi<>b  on  the  ^und  of  murder,  havîng  been  com- 
mitted,  leaving  to  th^  juiy'of  United  States  ciiâzens,  the  right  of 
deeiding  whetber  thé: crime  reaUy  was murder  or  treason  ;  thereby,. 
in  fkot  deolaring  thalt  the  Extradition  treaty  bas,  done  away  with 
flie  right  *of  asylum  for  political  refugees  in  Canada.  They  bave 
forgotten  that  this  'committal  for  Extradition  is,  so  far  as  this 
country  is  conceméd,  a  final  judgment  ;  and  surely  if  we  do  not, 
wish  to  be  looked  upon  as  the  most  pusîllanimous  cowardly  race 
upon  the  face  c^  the  earth,  some  stand  must  be  made  against  this 
departore  ^^dicial  authority  from  the  traditional  policy  of  the 
empire.^^FM^xpte  Bollman  et  al.,  Marshall  on  the  Constitution 
(on  p.  MM|l),^e  People  v.  Martm^et  al.,  7  N.  Y.  L.  Observer 
(Ç-  ^«Hp  4  Opinions  Atty.-Gen.  p.  202.  The  other  pomts 
laid  dflW^ylhe  jud^ea  will  bè  coneidered  as  they  présent  them- 
selves  in  the  order  of  my  argujiaent. 

Abandoning  for  the  moment '.jjhe  gênerai  principles  of  Ex- 
tradition, and  the  cases  cited,  I  pVoceed  to  address  myself  to 
the  facts  of  this  case.  On  the  19tli 'af.October  last  the  town 
of  St.  Albans,  in  the  State  of  Vermonï;  one  of  the  so-called- 
United  States  of  America,  was  thrown  into  consternation  by  the 
appearance  of  a  body  of  twenty-one  armed  men  whose  leader 
declared  that  hewas  a  Confederate  oflScer  dispatched  by  his  go^^m- 
ment  to  take  the  towii.  ^Parties  of  men  were  dispatched  to  différent 
banks  where,  in  each  instance,  after  declaring  that  they  were^ 
Confederate  troops  sent  to  retaliate  for  the  outrages  committed  by 
Sherman  and  Sheridan,  United  States  ofl5cers,in  the  territoriesof  the 
Conffederate  States,  they  forced  the  officers  of  those  banks  to 
deliver  up  to  them  divers  valuable  securities  of  the  United  States, 
worth  about  half  their  nominal  value,  and  bXL  the  bank  notes  in 
the  institutions  at  the  time.  /l  wish  to  draw  your  Honor's  atten- 
tion at  this  stage,  to  the  fact/that  bank  notes  and  securities  for  the 
payment  of  money  arc,  lùider  the  déclaration  of  the  GovemHient  of 
the  United  State(B,jBontraband  of  war,  and  liablo  to  be  takën  from 
a  neutral  ve^Bel  unolrthe  same  circumstancesas  would  justify  the 
forfeiture  of  munij^ns  of  war.  Whilst  in  the.  bank  thèse  scènes 
irere  goin)g  on.  anclher  pwty  hàd  been  detaohed  to  secure  horses 
and  eqnipinems  fat  the  raiders.  A  snflBoient  nnmber  was  procured 
to^mount  them  ftll.  In  the  interval  a  numberof  United  States 
oitiiiens  had  beén  taken  prisoners,  and  were  conveyed  to  and  kept 
xmder  gnM^}in  a  pi^lio  gg^oare.    Dnring  ti>e  time  a  party  of  the 


Ï: 


\ 


niders^erUn  pÔMeMi<m  of  the  St.  Albajois  bank,  a  perron  of  IBe 
nanie  of  l^ok  entered  to  pay  a  note.  Hé  was  infi^rmed  that  he 
~     4  pdÉmér  to  the  Confisderate  troops,  and  the  money  whiofa  h» 


'7 


s4^^>'^ 


'liHîiH 


\ 


i  .11 


I     Ijl 


286      ^     ,  .  i       . 

m  brought  With  him  was  taken  from  him  by  one  of  the  Wo 

raidera  mounted,  and  the  townspeople  vho  had  armed  themselxea 

A^ttempt  to  fire  tie  town  wm  frustrated,  and  the  raiden  being 

formed  in  mihtary  airay  retu^d  from  the>vn  pureued  by  some  of 

the43iti2ens,whofireduponthemintheiri»treat.    A  pirauit  wtt 

prganized,  but  the  whole  partj  of  Confederates  succeeded  in  orSh 

mg  the  bno  to  Canada  where,  without  warranta  or  Bwom  informa- 

»  ùons  havong  been  laid,  thirteen  of  them  were  arrested  by  the 

^untry  mag^tratea  and  constables.     So  soon  aa  the  news  reiohed 

Montréal  and  Québec,  Judge  Ooursol  was  despatched  to  the  fron. 

taer  to  conduct  the  proceedings,  and  was  ordered,  by  the  AttomeV 

Oeneral,  to  arrest  the^  offenders  without  waiting  to  Lke  ont  S 

mataons  ox  to  draw  Warrants.     It  is  unnecesâry  for  me  hère  to 

?olT/"^^'  ^***^^  ^^  *^'  proeeedings  had  before  Mr.  Justice 
Coursol,  for  they  are  now  matter  of  histoiy.    The  facte  of  the  raid 

?nf  ?f°p  ^^>.T'*®"^  before  your  Honor.  The  commis, 
«on  of  Bennett  H.  Young  in  ihe  ànfederate  army,  iJS 
mstructions  to  form-  a  corps  of  tweniy  Confederate  soldiez,  eseaped 
pnsoners  ofwar  ;  his  instructions  to  report  for  orders  to  Me^ 
Thompson  tnd  Clay,  and  his  instruetion»  to  report  to  Mr.  ^y 
alone  for  orders,  are  fullv  and  satisfactorily  proV^d  in  this  case 
The  actual  order  to  maie  the  raid,  signe*  by  Mr.  Cky,  has 
been  produced  ^and  proved  ;  and  the  muster  rolls  of  the  dâferent 

^"rhH''^"^*^'i'^'f '^  l'^^^'^S'^  ^«  Confederate  service 
are  al»  b^ore  the  Court  authenticated  by  the  proper  authorities. 

the  19th  of  October  hist  Bennett  H.  Young  was  an  officer  in  <he 
service  of  iîxe  Confederate  States,  in  commïSid  of  a  party  rfCcît! 
federate  troops,  detailed  for  spécial  service  by  that^ifederate 
Oovemment  to  St.  Albans,  in  the  State  of  virmont,  XwSch     ' 

ttl^— *'***/.?*'Ît'^"'?  *^«°  »*  ^'^«  State  ofVement 
then  bemg  one  of  the  United  States-wWch  war  by  Her  MajeT 

had  previoudy  been  acknowledged  as  a  perfect  wi,  and  by  hS 

tS?iîn  'tr^  ^  ^'*"  .^*™*^  ^  "^^  a^^  keep  »  strict 
toîSt  **''T  *h«.T>a^««  contending.  It  is  necesJaiy  hère 
S/r  '  r"*  "V^"  *•**  **^  ^'"^  importance,  with  référence  to 
^ly  existence  of  the  treaty,  under  the  proViwons  of  which  the 
exbjdiùon  of  the  pnsoners  is^demanded.  *Since  the  date  of  the 
tteafy,  five  or  sut-  Sbrtes  hâve  been  admitted  into  the  BepubKc,  at 
th»t  tmie  compoeed  of  a  number  of  sovereign  States  recoiûMd  by 
œ    Tu  .*!  *  ePl^ramnt  under  the  name  of  the  tJnitedsSles. 

Kopttbhc  at  thaï  âme  Mve  aecpded  therefiTïidWS  W 
.«elves  mto  a  separsto  repubUo,  under  the  mune  of  the  Confederate 


.y><s^ 


-"  » 


.1  237 

Statea.  Op  it  be  pretended  that  Great  Britain  bas  the  sam© 
ri^iSi  agtumst  the  Uùited  States,  which  can  be  granted  to  her  now, 
as  at  tiie  date  of  the  passing  of  the  treaty.  *  &  a  man  commits  a 
crime  in  CjUiada  and  takea  refuge  in  Richmond,  can  the  Govern- 
ment of  the  United  States  extradite  him  on  the  demandofthe 
Biitish  Government.  If,  on  the  contrary,  a  man  commits  a  crime 
in  Texas,  whicM  jiz&  only  admitted  into  the  Union  in  1845,  and 
which  -was  in  1842  an  indèpendent  State,  can  he  be  extradited 
on  demand  of  t^e  United  States  Government  if  he  seeks  a  refuge 
and  be  apnrehended  in  Canada  ?  Neither  of  the  two  cases  waa 
•anticipatea  at  the  date  of  thé  treaty,  and  it  cannot  be  pretended 
that  the  clauses  of  a  convention  between  two  nations  are,  a  whit 
mor»  elastic  than  the.terms  of  a  comtract  between^individuals.  It 
is  also  to  be  remarked  that  the  Constitution  of  the  Uiiited  States 
is  singnliir  in  its  formation  ;  the  rules  applicable  to  a  monarchy  do 
not  apply  to  a  republic.  Treaties  between  monarchies  oi«  empires 
are  made  by  the  monarchs  or  emperors;  but  thç  United  States 
alwaysmade  their  treatieç  in  the  fédéral  capacify  of  a  number  of 
sovereign  Statep  constituting  the  Umied  States.  This,  then,  wa« 
notiiing  more  or  less  than  a  republiç,  the  sovereignty  of  which  was 
innnediately  dissolved  by  the  breafeng  out-  of  civil  war  between 
the  several  soverei^  States  of  which  it  waô  cômposed  ;  for  in  a 
repnblic  i^e  sovereignty  subsista  solely  in  the  ul|ïîon  of  the  m^m-  ' 
bers  of  thé  republic.  It.  may  be  urged  that  thisjs  à  question  for 
the  considération  bf  the  Govémmerit  of  Gretrt  Britain  alone,  that 
it  fkUs  within  the  powers  of  tiie  Executive,  aind  that  judges  are 
iMmnd  m  thèse  matters  to  conform  to  the  rules  of  CMiduct  laid 
down  by  the  Goverment,  and  that  the  United  States  being  slîll 
recognaed  by  the  Quèen,  you  are  bound,.8till  to  présume  the^xial:- 
"^enoe  ôf  that  republic.  ,.  ■' . 

Tô  th©  stttdent  thé  difficulties  met  wîth  in  his  search  for  the  tnie 
prindples  of  the  law  of  nationsare  almost  insurmoontable.  Apart 
entiïely  fiçm  the  impossibility  pf  clearly  defining  ail  the  prihciples  of 
that  laW)  if  law  it  redly  can  he  called,  which  does  not  provide  or  admîî 
of.  a  judge  in  the  contentions  of  the  parties,  who,  it  is  pretended,  are  ' 
boond  by  its  raies— whose  princi^Ies  no  machinery  exista  to  enforce, 
and  whose  spint  and  letter  can  be  infringed  bj^  any  nation  strohg 
enon^h  to  set  its  ehemy  at  défiance  ;  the  numôrous  pommeûtators 
upon  international  law  hâve  to  a  yéty  great  extent,  bj  tibeijr  ineau- 
tions  labors,  tended  to  burthen  the  student  with  tiie'task  of  seeking 
amo]^  their  private  opimons  of  what  should  be,  what  reall^  is  the 
law  ctr  nations.  They  hâve,  without  due  confflderation,  adopted  the 
«sage  of  twe  m  Ùaw  oHfa  n«t^lonro^E^^^oprwitMn"a^e^  W^^ 
^éan,  iB  légal  amendments  or  modification?  of  tiiat  law  on  the  sab<> 
jeot  of  war,  takmg  it  for  granted  that  thoeè  nations  hare  a  right  to 


"^ 


« '«^ 


«o'  ,  < 


:    r 


v^"-^.-'""i-\i(«'!a?trfiïi.''''s'î'is'"'''  .    ' 

-          •           % 

2^8 

.,  ■' '  i'  '.'"'r- 


S 


^ctate  to  the  re||iÂf  the  worid  the  proper  course  of  conduct  to  be 
piirsaed  bj^  belfigerentu,  forgetting  that  ail  nations  are  equal,  and 
that  no  nation  is  bouiffl  to  sùbmit  to  the  diotation  of  another.  Thev 
baye  also  taken  conventions  contained  in  treaties  as  declaratoiy  of 
cxÎBtijig  law,  whilst.really  treaties  must  be  looke4  upon  as  means 
for  obtaining  the  récognition  of  principles  exoeptional  to  the  gênerai 
rule.  But  few  of  tiie  writers  of  this  cent»gr,  if  any,  hâve  shed  any 
lighi;  i}pon  that  law,  and  in  order  to  obtam  a  fidthful^nsight  into  ifs 
principles,  boldty,  perhaps  coarsely  portrayed,  we  must  refer  to  lie 
publiciste  of  the  last  two  centuries.  Of  course  in*  so  spealdng  I 
make  no  référence  whatever  tp.  the  "cases  decided  in  the  Engj^ 
Admiralty  and  in  the  United  lâtàtes  Suprême  Court,  which  are  ail 
of  the  highest  authority  and  are  moreover  founded  on  and  sustained, 
by,  the  writings  of  the  authors,  who  flourished  in  the  seventeenth  and 
•ejghteenth  centuries. 

I  hâve  now    arrived  in   thj*   case   at  that  particular    pomt 
where  it   becomes    neifessary  to   consider  the   ri^ts  of   belli- 
gerents.    Wars  of  old  were  divided  by  the  commentators  mto 
perfect  and  imperfect  ;  the  perfect  war  is  also  called  public  or  sox 
lemn,  and  is  where  one  whole  nation  is  at  war  with  another  whole 
nation  ;  an  imperfect  war  is  one  limited  to  place»,  persons  and 
things.    A  civU  war,  when  it  bas  attained  sufficient  magnitude  to 
induce  foreign  nations  to  déclare  their  neutrality,  is  a  perfect  war. 
In  such  perfect  war  both  parties  are  belligerents,  and  entitled  to 
ail  belligerent  rights  given  by  war  to  sovereign  govemments.    It  is 
perfectiy  clear  that  so  soon  as  war  breaks  out  between  sovereign  Go- 
vemments, the  municipal  criminal  codes  of  the  belligerents  ar«  mlent 
and  inoperative  quoad  acts  committed  by  the  troops  of  eitiier  of  the 
belligerents  in  the  territories  of  the  other.    War  is  a  recourse  to 
violence,  to  repress  which  municipal  criminal  codes  are  instituted. 
But  war  is  le^.    Under  thé  law  of  mitions  that  law  is  superior  to 
any  municipal  code.    A  perfect  war  ^ves  the  right-to  the  membeis 
of  one  belligerent  nation  to  kill,  spoil  and  plund^er  the  members  of 
the  other  belligerent  nation  wherever  found,  except  in  neutral  ter- 
ritory.    Such  being  the  case  the  municipal  codes  having  for  their 
object  the  punishment  of  parties  killing,  plundering  or  committing 
otiier  violence,  are  quoad  members  of  the  other  belligerent  nation 
paralyzed  by  the  supeiior  authority  of  the  law  of  nations  during  war. 
IJUer  arma  tilent  lefffs.    AU  offences  committed  by  members  of 
oné  belligerent  nation  upon  the  members  of  the  other  on  tibatothors 
soil, — arewithin  the  jurisdiction  ofmilitary  tribunals solely,  and 
are  gauaed  by  the  laws  of  war.    That  this  doctrine  is  recogniied 
m  the"  United  States  caimot  be  denied.    The  I^»gidftnt'iajtrnnlA«i«à- 
^âmoim  SQïBeptembèr,  by  wHcH  Oie  ïwwer  ofŒêjuaioiî^ 
was  abrogated  in  cases  affecting  individoal  liberiy  and  tiie  establish- 


2»9  , 

ment  as  matter  of  faot  of  martial  law  throughout  the  limits  of  the 
former  United  States,  as  well  the  loyal  as  the  rebel,  shows  conclu- 
sively  the  correctness  of  the  position  by  me  taken.  K  further  "proof 
he  wanting,  take  the  case  of  Beal,  uiq  leader  of  the  Lake  Erie 
expédition,  for  prticlpation  in  whioh  Buriey  was  extradited  as  a 
roSber,  and  gather  from  the  proceedings  and  sentence  ofthe  court- 
martial  held  on  him  ànd  its  approval  by  Gen.  Dix,  whether  the 
Upper  Canadian  judges  were  justified  ^  believing  thathe  would 
hâve  a  fair  trial  before  a  jury.  It  has  been  held  by  some  authors 
of  late  years,  thftt  only  the  regularly  commissioned  officers  and 
enrolled  troops  of  one  belligerent  are  authorized  to  enter  into  hos- 
^lilities  agamst  th©  other  belligerent.  Without  admittmg  thàt  pro- 
position, Btill  as  this  case  présents  the  prisoners  in^hose  capacities, 
I  am,  for  the  sake  of  argument,  wilhng  to  àdopt  it  àa  the  rule. 
Nations  are  sovereignî  If  the  Government  of  one  belligerent 
chooses  to  despatch  a  body  of  its  troops  into  the  territoïy  of  the 
other  belligerent,  with  instructions  to  devastate  and  lay  waste  that 
territory,  and  those  troops  do  so  devastate,  plunder  and  lay  waste 
ihat  territory,.  and  commit  any  other  hostile  act  therein  not  mentioned 
in  their  instructions,  the  other  belligerent  has  no  right  to  say  to 
them,  if  captured,  yôu  are  but  maraliders,  for  you  bave  exceeded 
yoùr  mstructiona.  "  The  mère  production  of  the  commission  of  the 
officer  commandmg  such  force  is  proof  of  authority  1;o  him,  by  the 
Government  of  his  countiy,  to  wage  ail  acts  of  hostility  against  the 
subjects  of  the  ottier  belligerent  permissible  under  the  law  of  nations. 
He  then  is  in  the  position  of  a  recognized  agent  of  his  Goverment, 
and  his  acte  are  not  individual»  but  national,  for  which  his 
Government  aloûe  is  responsible.  Should  he  exceed  his  in- 
staiictions,  he  is  responsible  to  his  own  nation  solely  and  exclu- 
sively  for  such  excesses.  If  he  deviate  therefrom,  so  long  as  he 
does  not  commit  any  act  contrary  to  the  gênerai  rules  of  war,  he 
cannot  be  called  to  account  for  it  by  the  other  belligerent,  or  by  any 
nation  on  the  face  ofthe  earth<  An  act  of  hosi^ty  tiien  committed 
by  the  officer  of  a  belligerent  commissioned  in  war,  on  the"  soil  of  the 
other  belligerent  is  an  act  of  the  nation  by  which  he  is  commissioned, 
for  whibh  no  individual  responsiWlity  is  mcurred.  That  this  is  the 
case  isiproved  so  dearly  an4  deoidodly  by  Âe  joint  admissions  of 
fhe  British  and  American  Government  in  tiie  McLeod  case,  that 
the  opposite  pretension  is  hardly  worth  ai^juing  against.  During 
the  rébellion  in  Canada  of  1887,  ike  American  steamer  Caroline 
was  raiàe  use  of  by  the  rebels  and  American  svmpathisers  tocany 
supplie»  to  Hke  rivaj  forces  on  Navy  Island.    The  vessel  usually  lay 


4uring  ^  nighfr  ftt  tofrii^Bid^ittid^a  expeditiDn  iras  orgauiwct^ 
under  théi  oommand  of  Captam  Drew,  R.  N.,  to  eût  her  ont  fi«m 
her  mooriligB  ;  but  on  its  arrivai  at  Navy  Island,  it  was  dkwovered 


1h, 


il 


:/, 


L 

É 

t' 

if 


fc: 


240  ^ 

■^  . 

tjiat  the  Caroline  had  been  removed  to  the  American  aide  of  the 
river,  and  was  then  lying  at  a  place  called  Schlosser,  in  the  State 
of  New  York  ;  the  expédition,  however,  prooeeded,  attacked  ihe 
boat,  carried  her  by  Doarding,  and  in  the  skirmish  a  man  of  thô 
name  of  Durfee  was  killed  on  the  soil  of  the  Stàte  of  New  York. 
The  Caroline  was  then  towed  out  into  the  xapids,  set  on  fire,  and 
sent  over  the  Niagara  Falls.    A  person  of  the  name  of  McLeod 
,  vimting  in  1840,  Manchester,  ii  the  State  of  New  York,  was  ar- 
rested  for  murder  on  the  charge  of  being  one  of  the  party  oonoemed 
in  the  cutting  out  of  the  Carolme  and  killmg  of  Durfee.  I  was  at 
Manchester   at    the    time,  and    remember    perfeetlj    that    the 
only  person  who  exclaimëd  against  the  arrest  was  a  gentle- 
man   from    the    Southern    States,      In   the    diplomatie    corio- 
spondence    which    en^ued,   it    was   clearly    admitted    by    both 
the  American  and  British  Govemments,  that  troops  actin<y  under 
orders,  and  eren  killing  the  citizena  of  a  nation  at  peaoe  with  their 
ownon  that  nation's  soUiwere  not  guilty  of  murder,  although  the 
commander  had  actually  exceeded  his  instructions,  which  did  not 
authorise  his  eibrcislng  any  act  of  hostility  on  the  neighboring 
Nation's  territory.    Is  not  tms  a  moch  stronger  case  than  that  of 
tho  St.  Albans  rûders,  to  prave  the  virtue  résident  in  a  commis- 
sion   of    an    oflScer    of    the    British    Nary  ?    The   acts  com- 
mitted  by  Young  and  his  command  were   done  in  an  enemy's 
country  ;  those  by  Drewand  his  command  in  the  country  of  a  friend  ; 
yet  in  the  latter  case  the  Govemments  of  both  countries  déclare 
that  the  acts  are  nOt  crimes  ;  whilst  in  the  former  it  is  pretended 
thl^  they  are.     There  is  also  in  existence  in  the  United  States  an  act 
of  Oongresâ  ^ving  législative  expression  to  the  doctrine  of  the  new 
reroonsibility  of  a  commisidoned  officer,  passed  on  tiie  8th  August, 
1842.    A  great  deal,  no  donbt,  will  be  said  as  to  the  fact  that  the 
raiders  were  not  in  the  uniform  of  the  Confederate  army  ;  but 
stratagem  and  déception,  so  long  as  no  perfidy  is  nsed,  are  quite 
perm^ible;  the  ambush,  the  disguise  of  unift>rm,  the  fiilse  flag, 
are  allol^able.    Those  who  trust  iSemselves  to  such  deyioes  mày  in 
the  two  latter  cases  be  treated  as  spies,  if  captured  in  the  at- 
tempt  to  deoeive,  or  ère  their  departure  &om  the  eneniy'a  country  ; 
but  once  be^ond  the  boundaries,  .tiie  enemy  is  not  justified  by  tiie 
lawB  of  war,  if  afterwai^  taken  prisoners  (8  Phillimore,  p,  141), in 
tréating  them  otherwise  than  as  prisoners  of  wàr.    No  otiier  power 
then,  having  tiie  li^^t  to  enquire  into  tàxe  &Qt  whether  or  na 
snch  commissionj^  officer  has  exceeded  his  instructions,  the  Go- 
vemïnpnt  niiich  commissioned  him  is  the  only  one  entitled  to  find 
^fiwlt  with  or  ponish  him  for  aay  excess  or  deretiction  ^f  duty. 
"^  Tfié  di%MBèu£ral8n6w,Torabriéf  spaoe  of  time,  jnuséoorapy  mj 
attention;  buttfaisbranohofthelawof  nations,  so  far  as  thisciM^ 


...jt 


■  ■■■'■%■■ 


.7j 


241  '       . 

Government  ha^^SîwTlta^^^^^  "^  T'*'  ^'^^'    tÏÏ 

United  States  and  the  Œ^^^^^  war  between  Z 

ourcourts,  judgesand  maZS th«f^^      *^'®^^7 '"^^"^ng  »« 
of  thoee  twi  6S.en.menXe  sïïLVno'"^^^^^ 
mcipal  crimes  committed  h^  Z  !°«        »°PPerafave,  sd  far  as  mu- 
on  ffited  St.te^tLlon^^Zf*^''.  ,t°?^«^-t«  «tateV 
alone  is  in  force  between  tijeTwoo!?'  ^  *^**  *^®  ^*^  «^  ^ationa 
teoope  and  «ubjects!'' Thl  ou7couI3f  .'^  «leir  respective 
.charges  are  brbnght  againsk  anv  rTi?   ?.  1?^*?^  "^  ^'««e^  ^^ere 
vemSent,  of  hav^  cS  •tîS^.^^'''  ^^.*^®  ^"^^^  «tàtes  Go- 
calledlojisS^hoStfl  Tf'''.'^^*^^  "°^*«  ofliéso- 

-0  charg^d  ^  cSntdlfe  oit  0?"^^^^^^^ 

or  soldier,  the  criminfll  onA  »  o!wi        ^"*<"er ,  if  he  be  such  officer 

which  the^ct  cS  WM  tm™;î?T'°  ^'^  °^  ^'^^  State,  withb 
«10  extradition  t^  Si  nTÏÎ'ni  '  ^u  ^"*  ^^^«  «Po»^  ^i™  î 
CanitbepreteiSLt^l"?: /ÇP'j^î  ^^  "?»«*  be  diadbarged 

Confederato^Stetes  ^e  Ué«  S  ^"''^  *î^  ."S^*  <«  ^^«tate  ^  tbe 
ébsepKKpSatyon  ;  mLXI  •  ^  """  ""^^^^  <*«7  '^  ^ound  tb  ' 
risiSiTde  ofre  fierre3J&'^  î*?  *'^''*  "^^  say  to  the 
frightful  war,  «  Jf^lSS^  *^^  ^^7  ^"^  engendered  by  this 
jou  think  tiiat  yor^dd  t^-T' V*  «<>  furAer?»  6rT 
^ueen  andTj^,  ^^t,  ^f  ^rgmg  your  dutv  to  your 
the  United  StatSn^aSl^  •  ^"^  «^ /'•«^ost  Marshal  to 
numbew  now  co^ed  l?  iïL^T''"?  ^^  ^«^  *°  «^«U  the 

theèueen'sproclamititofneSrJ^L  aT^nr'/^^  ^  '^^^ 
par  with  the  bench  of  l?pper  Ciïïa^'  ^J*"  placo  yourself  on  a 
our  neutrality  laws  haa  rK  «ÎÏÏ7     x  ^®  P^etended  noUtion  of 

iheymareheffiU^Sirte  ^  Had 

bave  been  a  grave  olenceaS  *^«  *°^  °°^^"  %i«&  i*  ^ould 
gravate,  m  tfie  s^Sf  S  *«*^î  °»'-  Govermnent  ;  but  it  camiot  ag- 

^^d^rS^Sf  ïîî^'^'' ?"  ~'**.^^ ^•«««'y  afterwards  pï^       / 
m  the  words  Jf  HXSomlr^£^^'*Y^^''P^i^^^J^^     I 

^eir^en^^S^tlMél^S^ 

*•  '  , 

/  .  ■  ■  ■  '  •       ' 


^3ï' ;•!■'' 


■-  ■/ 


/ 


,*f 


242 


a^mit  that  our  clients  hâve  any  claiiii  to  be  belligerents .  The  peopl» 
of  the  State  of  Yenuont  are,  it  js  said,  frightfully  excited  at  the 
idea  of  one  of  their  tovns  having  been  captured  and  held  for  thi^e 
hours  by  a  band  of  twenty-one  pretenaed  Confederate  sold^nu 
The  booty  taken  from  the  banks,  no  doubt,<haa  alao  tended  to  e:ia- 
cerbate  their  feelinga,  and  they  still  continue  to  brand  the  St. 
Albans  rûd  as  unsoldierly,  dastardly,  in  violation  of  the  n)leB  of 
irar,  and  perfectly  fiendish.  They  ail  seem  to  take  itfor  graated, 
that  the  Ôovemttient  of  the  United  States  vages  var  after  the  nûldest 
faehion,  on  the  idea  of  doing  the  least  possible  harm  to  Ihe  enemy . 
No  pillage,  say  they,  is  pennitted  ;  women  sleep  t^ranquilly  m 
the  rebel  States,  "wirnux  the  sound  of  the  bugles  of  our  régiments  ; 
ehildten  are  cared  for  by  our  soldiers  mm  patemal  love;  pro- 
periy  of  every  description  may  be  before  our  troope  for  daya 
without  ah  article  disappearing  ;  our  men  are  modela  of  bravery, 
honesty,  and  morality  ;  our  gênerais  are  gentlemen,  and  Christian9. 
And  yet  vrhatdoes  the<record  of  daily  events  show  us?  That  this 
Terily  is  a  civil  war  waged  by  the  Northagainst  the  South,  with  ait 
iàxe  barba]^  ôî  the  thirty  years  war,  must  strike  eveiy  observer. 
It  is  the  old  feud  of  the  Cavalier  and  Roundhead  risîng  like  a  phoMÛx 
.from  its  ashes,  andbathing  the  soil  of  this  continent  in  oore.  ,  It  is 
a  strife  wherein  the  father  meets  his  son  at  the  point  of  we  bayonet, 
and  vrhere  t^e  brother  imbrues  his  hànds  in  his  brotliec's  blood.  It 
iè  &^amival  of  blood  ;  and  can  it  be  wondered  at  that  man,  drunk 
Trifn  the  odorof  carnage,  shouldforget  that  he  was  framed  oR^r  hia 
Creator's  image,  and  do  deeds  whîch  b»ring  him  to  the  level  of  the 
wild  beasts  ?  It  may  be  as  well  hère  to  refer  to  a  couple  of  instance» 
to  show  the  humanity  and  Christian  feeling  of  the  commandera  of  ^e 
Northçm  armies.  Sala,  in  one  of  his  tetters,  gives  on  the  testimony 
of  an  eyewitnëss,  relation  of  the  following  facts:  a  boy  of  fifteen  or 
nxteen  years  of  âge  was  convicted  of  having  in;  his  mother's  house 
a  rifle,  and  was  sentenced  to  die  ;  hjs  mother  anid  siater  fell  on  their 
knees  before  the  General  commandins,  beggedthat  the  boy  might 
be  spared,  the  poor  child  in  the  meanwmle  ignorât  of  his  impending 
fate,  patting  the  neck  of  the  générales  charger.  His  only  reply  to 
their  agonized  entreaties  was,  thât  they  might  hâve  his  body,  and 
g^iing  a  sign,  the  unfortunate  boy  was  marcb^ld  five  or^six  pacea 
„to  the  rear,  when  the  orderly,  plaeing  a  revolver  to  me  viôtim's 
head,  blew  his  brains  out,  in  nri^nce  of  his  mother  and  sister. 
The  other  case  to  which  I  reier  il'that  of  a  lady  who  perohance 
may  be  amongst  those,  who  now  hear  her  melàncholy  story.  Her 
hushand,  a  major  gênerai  in  the  Confederate  àervice,hftvmg  been 
Idlled onthe  field  of  batfle,  she^demred  to<g|otô  England,  his  native 
landi  The-  Preindent  of  the  Confederate  StatesTrmtëâtltpâr,  an 
for  tue  republic,  bought  from  her,  ail  the  cotton  tiien  ou  her  phnta- 


M 


y 


248       . 

tion,  paying  her  therefor  115,000  in  cotton  bonds  WiA  *k^. 
^K>nd^  in  her  possession  and  #26  in  gold  in  W  SV  ^  ^ 
m  Orieans^here  she  .JZàfl  h" 'in^''^  tiTak:n 
ttm  her,  and  in  a  strange  country  she  waa  tumed  «nf  ^/  *f^ 
Itreetetostarye.  So  mucf for  tbe  h?m«Sty rfSS^^^ 
womenandchadren.    L.tmho^t^^Z^^T^^'^.^^^^^ 

it  wiU  faU  firom  the  shoulders  of  the  m^  of  the  nineteenth  rSi,^ 

^e  world.    It  18  a  sad  and  melancholy  prospect  for  any  mmi  of  Jhe 
Anglo-Saxon  race  to  behold  that  faiïfcpibUcTwwSf  So^«î  S 
an  infant  m  years  was  a  giant  in  stature,  ind  which  but  a  fef  ahor 
montiis  ago  was  the  home  of  freedoûi  a^dUe  aaylum  fîr  thetl 

despotism  is  exercised,  where  liberty  is  no  longer  known  s^e  b 
faction,  and  where  those  whô  seek  m  asylum  f^m  <îe  p^s^uL^ 
of  fte  task-masters  of  Europe,  are  driven,  like  qatde  to  th^Kbl«« 
by  Ae  speculators  in  human  blood  of  the  New  \ldrl4  It  MmS 
I  say,  for  any  man  with  British  blood  ih  bis  vems  not  to  aSttie 
hero^valour and determinationwbich  bave caused the  Confedwates 
"  ?«^*"  ^  SZ"°'P?  *^«'*  ^^*  ^ere  thought  to  be  iZSe 
difficuUjes     Though  Aeir  cause  may  now  look  despST^at 
valor  which  bas  enabled  them  ère  tiiis  to  knocfc  at  WoTof  ^« 
Capitol  wiU,I  verily  beUeVe,  i^me  them  to  repejî^he  attei^ïî 
sucessfuUy  ère  liua  war  be  conclufled.    Such  I  EeLeto  beZ 
sentiment  of  evenr  Englishman  in  whom  the  disgustmgTve  of  taSe 
bas  not  destajye/the  traditions  of  bis  mother  cCKd  hia^ 
uibom  love  of  flur  pla^  and  hatred  o£  tyranny.       ^'        ^   ^ 
♦W?k'  "<f  *POW«  >  you,  Sii^,  for  the  gréât  lengtb  of  time 
%t  I  Imve  taken  m  laying  bèfore  vou  my  vitws  of  thTcMe     I  ^ 

hâve  reÇrred  to  the  responsibiUty  of  the  coimsel  engZd  •  I  mav 
now  perbaps  be  ï^rmittod  to  wnirk.upon  iiTweighUf  lî^^JJ  , 

bi^,iii  ans  caseanopportunityof  immortalismgyourself  asa  S'  ' 

%s  M  not  au  ordmaiy  suit  conûng  before  S^ni^paTfS      " 
wh^  bv  allpersons  save  the  phùnti&nd  alitant  wil/be  Sfi 
m  aweek;  it  is  one  which  in  afl»r yeaj^  wiU reflect  cwdi^n  lo* 

dlî?  "^"^"^y  ^"^^  carelesàness  or  f«?m  auy  othe!  m^vS'iM 
de^^on  is  UBsoOnd,  you  beq^eath  .to  your  cSdreu  an^une|S 


^j5onclu8iQn,  I  trust  that  your  fionor  wiU  asoribe  the  imp^^^iki^ 

ty  ^^"^VS  "?*  ^  '^*  weakness  of  the  prisoners'  oSK 
my  inabihty  to  do  justice  to  their  claims.  *  ^'^ 


!?'"' 

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'tfll 

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244 

Mr.  LafUmntêfQ^O.jntàd: — 

If  it  were  possible  to  divest  this  oase  of  ail  interest,  préjudice, 
and  paavoD,— if  the  naked  propositions  of  law  and  faot,  upon  which 
it  resta,  were  alone  submitted  n>r  décision,  the  taslf  woula  be  easy. 
If  the  demand  were  made  by  soçae  small  renublio  of  South  America 
for  the  extradition  of  five  oonunissioned  aoldiers,  engaged  in  a  civil 
war  there, — admitting  that  the^  had  violated  ail  the  laws  of  hoepital- 
ity  and  neutnlitjr  of  a  neighboring  countiy, — no  argument  would  be 
reouired.  Unfortunatelj  ror  the  prisoners,  their  deeds  hâve  created 
a  deep  and  gênerai  sensation.  The  feelings  of  their  enemies — our , 
too  powerful  neighbour — hâve  been  aroused:  violent  language  was 
usea  towards  Canada,  whom  they  held  responsible  for  tbia  mjuiy. 
Our  oommunity  feit  that  war  was  impending  ;  evèry  individual 
aiready,  contemplated  his  min  in  the  ruin  and  désolation  of  the 
countrj.  The  guilty  or  innocent  causes  of  such  anticipated  disasters 
"  could  not  expect  much  sjrmpathy  or  favor  from  those  upon  whom 
they  were  to  precipitate  Auoh  calamities.  Every  one  beheved  that 
the  only  manner  of  averting  thèse  calamities,  was  by  soothing,  at 
any  price,  the  anger  of  our  neighbors,  who  were  loudly  clùming 
the  surrender  of  tiie  prisoners.  Fear  left  no  freedom  to  the  ap- 
plication of  any  rules  of  law  or  justice.  The  prisoners  were  styled 
common  robbers,  their  act  an  outrage  against  humanity.  Beady- 
made  doctors  of  international  law  lud  down  the  doctrine  with  ail 
the  dogmatic  assurance  of  ignorance.  It  is,  moreover,  in  human 
nature  to  shape  principles  acoording  to  necessity,  and  to  assent  to 
any  doctrine  favoring  its  interest.  The  Government,  from  the 
highest  to  the  lowest  officiai,  and  their  servile  instruments,  were 
most  active  in  diSseminating  thèse  ideas.  From  this  so  contrived 
and  made  up  opinion,  a  uni  versai  notion  seemed  to  pexvade  the 
whole  conununity,  that  the  case  of  the  prisoners  was  a  difficult,  a 
hopeless  me.  Those  on  whom  they  had  to  rely  for  support  were 
few  and  powerless.  Their  Government  was  cUstant  and  yisàk^ 
wtûist  theur  enemies  were  almoet  amongst  us— over  us,  dictating 
witii.qondisputed  authority,  and  obeyed  with  crouching  docility. 
It  18  against  ^ese  difficulties  that  we  hâve  to  contend,  more  than 
agunst  any  real  légal  obstacle.  The  questàon  submitted  involves 
a  questiiJn  of  British  liberty.  To  its  deciùon  is  altached  the  lives 
of  five  men  ;  and  the  main  issue  is  between  two  nations,— one  asking 
that  thèse  men  sholl  be  declared  robbers  and  murderers,  to  be 
treated  by  them  as  such  ;  the  other  àssertmg  that  they  are  brave 
and  dutiful  soldiers,  having  infliotied  upon  an  enemy  none  but  a 
well  devised  and  weU  exeouted  iiyur^.  It  is  with  a  sensé  of  shqme 
that  one  thinks,in  a  matter  iuTOlvmg  principles  wMch  aBrilash 
subject  ott^to  faoW  mostTwcred^  tiiafrfearinig^t  oppwis  jtaâes;"" 
1!ho  rendition  of  the  prisoners,  owing  tosuch  a  motive,  would  be  a 


i!P 


!'*"■"**. 


246 

adyoçated  or  more  liberaUy  construed  the  ^titi^J^^Z 
mdiYidaal  hbertv,  the  freedoi  of  the.ioU/the^SoSK  tl,/ 
mlum  offered  6y  «lem  to  erery  individokire^SjSSt^A^ 
rho  hftve  comnutted  mmi&^MB[n»t  th«  u.J  J  Jz^     hL  ^T 


'  "^'  '. 


who  hâve  oommitted  crim 
Qot,  and  can  not  expe 
hâve  80  olearlj  laid  doi 
fied  by  soond  prinoiplej 
«ttd  athnired  by  them  ; 
cion  of  their  senae  of  jos 
oall  it  by  no  other  naiçé, 


it  the  law«  of  nature.    Aey  do 

ation  from  the  nilee  whioh  they 

fcftwal^of  thia  application,  if  justi- 

lonal  law,  will  be  approved  of 

lègitatioa  wopld  imjdy  a  anapi- 

-    "l^V  *  ^«<y  on  <mr  part,  tô 

Ihe  prwoners  are  acoiûed  of  havinir  rbbbed  one  Hn^lt   î„ 

the  facto  of  the  case,  as  disclosed  by  the  evideioo 'iSldiiS 
before  your  Honor?  In  the  month  Jf  SeptemKaT  Zf 
nett  H.  Young,  a  lieutenant  in  the  Confedetete  s^T'lSf; 

cause  of  hu.  ccmntry,.  finding  ft  impossible  to  «iny  ^*  £î 
gan,  determmed  to^fulfil  the  instnSs  which  h?  wceiîïd 

cSedLte  Tr°*'  V^  *  ^^  ^^  twen«f  men  of  ra;ed 
oo^ederate  soldiers.     He  was  commissioned  ïor  sp^etal  duV 

or^ed  then,  m  the  enemv's  territoiy.    They  were  enffid  b^ 
him  for  the  purpose  of  œakmff  an  attwk  nnSSi  «a?      .5^ 
townofStJZT   AÎ^hirmtn^tre'îW^ 
ttZ'Tf  '}\'^''^ri  «ountry.  The  ba^t  o?JrSuïJ 

wrtoS;r*lK'^T'a*^^**'^'*'**^«*°'-    Their  alE? 
wîtwi,  •    ^°*^««^te  Sta^a.    Be'the  unfortunate  conS  b 
wbch  their  countty  is  engaged,  right  or  wrong,  they  wew  wtoated 
eJe^on^'^f  ^r^^'l'ï"  r'\  *«i«<«~«ted  and  paLtirS^I?     ' 
cI2     kfr  ""^  ^l'^î^/PeriUed  theîrUvesb  their  coonW; 

m^n^Z  .l'ydr  the^  thirsted  for  reyenge.  CaUed  by^ir 
mpenors  to  inflict  puniahment  on  their  enemiés,  "by  bumma  ènd 
plnndermg  the  town  of  SL^bans,  they  cheerfuÙv  oCX^^v 
gx^eeded  te  cany  ont  ^|  plan,*ao  ^r  a.  w^i  S  ^owe^ 


fedetate  Statea,  aacked  Ihem,  0et  fire  to  the  town  in  three^»^ 


%U 


if!!  !■'!':  f 


\.- 


246 


aa3  Jlroin  tbe)  beg^ing  stated  that  they  were  Confédéral  êo\- 
diflél.  Th«  priéoners  went  thrbu^  the  town,  made  prisoners  of 
an  thèy  m«t,  protîded  themselves  with  hoi'ses  taken  from  thé 
people  ;  and  aner  màking  perhaps  double  tbeir  niimber  of  pri- 
sonçira,  they  left  the  place,  porsued  by  an  armed  band  of  citizens, 
vrho  I^pt  close  fire  upon  them.  They,  howeter,  eticceeded  iiï 
making  iàeîr  escape  to  Canada,  vhere  thirteen^  of  ^hem  were 
arrésted,  at  the  request  of  the  United  States  authorities.  Out 
of  thé  whole  of  tîiis  eîcpedition  the  proseoution  bas  thought 
propôr  to  angle  out  the  taking  of  Mr.  Breck's  money,  the 
flinâlest  incident  in  the  whole  transaction  ;  a  fact  which  cannot, 
with  any  reason,  be  abstracted  or  severed  from  the  main  project. 
It  is  unnecessaty  to  dwell  upon  the  dreadful  civil  contest  which 
bas  now  been  raging  for  five  years  with  uninterrupted  fury  in  thig 
once  bappiest  countiy  m  the  univereie.  The  world  bas  followed  the 
history  of  tbis  awfiil  strpggle  with  sorrow  and  dismay.  Ëleven 
indepehdent  States  bave  asserted  tbeir  rights  as  free  members  of  a 
voluntary  association,  to  sever  from  tbis  association,  which  thèy 
bad  formed  for  tbeir  individual  interest,  reserving  to  themselves 
tbeir  separate  sovereignty.  Twelve  millions  of  the  people  of  tbis 
démocratie  nation  demand  to  govem  themselves  according  to  tbeir 
own  views,  alleging  violations  of  the  original  compact,  aggression, 
interférence,  and  oppression  of  tbeir  individual  States  by  the  others, 
and  for  open  threats  against  tbeir  rights  and  liberties.  Tbis  sépa- 
ration is  denied  ibem  by  the  other  States,  because  they  are  more 
numérous  and  powerful, — ^becaubè  more  States  bejng  combined  in 
one  policjr,  they,  the  more  powerful  party,  believe  that  subjugation 
and  coercion  is  just  and  lawfol,  and,  they  insist  upon  imposing  tbeir 
will,  tbeir  views,  and  tbeir  ideas  upoii  the  eleven  indepéftdent  States. 
The  fifteen  States  on,  oné^side  insist  on  ruling  th©  ten  refractoty 
State».  Tbô  twenty  millions  of  the  North  claim  and  insist  upon 
uncompronj«fing  obedïSbce  from  the  twelve  milKonsDf  the  South. 
The  whole  population  of  the  conAtry  is  divided  m  two  hostile  camps, 
On  both  sides  we  witiiess  th^t  deep,  intense,  unforgiving,  unre- 
lenting  hatred  which  belong  t6  civil  wars  only  ;  that  Itetred  which 
Bucceedrfratemal  love.  The  actimputed  to  the  prisoners  arises 
out  of  tbis  civil  war,  and  it  cannot  be  tiie  groimdf  of  extradition 
under  ^  statute.  Ist,  The  act  is  a  politicrf  one,  inspired  hy, 
and  ooimècted  with  what  is  called  rebeUion  by  those  applymg  for 
the  extradition  of  tiie  pri^ners;  2nd,  The  actwas  one  comipitted 

-  —         ^^  ^j^g  carrying  out  «K  war  againiit  tft 

werable  to  no  municipal  tribuniJ  of  the 
Act^and  if  irregnlar,  cognizable^nly  by^ 
der  martial  law;   8rd,  ft  b  a  national 
an  individual  one. 


by  soldiers  of  4  boUige: 
en^pay  ;  and  tiiey  aro 
enemy;  itwafiA    *'"' 


tïe  militai7  tribunal 
offisnoÀ,  if  any,  and  n 


f'» 


M 


Éà^ 


an  pohtioàl  offences  or  criminal  chargée  arising  from  wart   or 
*nte,ttne  commotions.*^   P«,fe88or  Wookey,  TYS/Sege^'Z 


.1  I 


247 
^i^W  ilTo  r**\°S^  foo*  0^  English  ground,  everjr  étranger 

Î sîf»!  5r  ^"l  s^^^jec*-  .  Our  laws  guaraniee  to  every  ia- 
idual  the  safe  hospit^ty  of  the  soC  It  has^been^ng- 
d  s  pnde,  ma  England's  boaat,  that  no  terrpr  4ld  ever  iS- 
th«  M'«f*?T.^T^'  ^^principle,  which  is  m  old  as  a^y  of 
the  0^at  LTberties  ofher  constitution.  Coke,  says):  "  ëub- 
S«te  *'°'  ^ne  kmgdom  to  another,  and,  u^  demand 
made  by  ttem,  we  not  by  the  laws  and  Uberties  of  kinedoms  to  be 

sàry  to  dweU  upon  it.     The  only  exception  to  it  must  be  found  in 

nais.    The  demand  now  made  for  the  extradition  of  the  prisoners 

L  Trlf  ^^^  *^'  "^^ï^"^?  ^^«^*^-  ^«  exceptionSeT; 
Uni  ^  *5'  gênerai  prmciple  of  Énglish  law,  tLt  no  fugitive 
$hall  be  surrendered,  excludes  most  strictly  evei4  offender  whose 
cnme  does  not  corne  within  its  provisions.  •^The^atrcompS 
murder,  assault  with  intent  to  commit  murder,  piracyfaS^^T 
l7r:A^^  ^T^'"^--    ?«/>\««t  of  the  Treaty  is  toX^  S^ 

^aT^Z^^t  the  umversal  code  of  humanity,_those  who  hi^ 

iZ^l^â  •  "'^  -:'^^'^.  ^  ^^^'^  ^«  ^«'y  bis  of  aU  Society, 
^d  whose  impumty  would  become  a  source  of  danger  to  mankinJ 

iL?-i  /^"'ï^''  "'*®''®^*  °^  «^«^  community  to  bring  such 
offenders  to  juflbce,-to  put  them  ont  of  the  pale  of  civStion?- 
to  deter  others  from  committing  the  same  offeïees,  by  the  certaiity 
^r^T/  "^  ?"*Pf  and  finding  no  refuge.  Our  law  and  the 
anv^lî?  î  "S*  "''^°^''  K°^  <^«  «ontrSy,  positively  excludes 
any  pohfacal  offence  or  any  crime arising  out  of  ipoUtic^d struggle, 

ÎTnLTlT'-   ?^*^  ^'^'^  ^  *^«  Treaty-Great  Bfitain  and  the 

iL^st?h«^'""-*'',P^^'^"'V  ^*^^  '"^  dispositions  to  ofifen^B 
against^the  municipal  code  alone,  carefully  omSting  those  which 

pajion  and  having  for  their  objeot  a  poUtical  reault.  ^£e  beat 
intMpretation  of  tiie  Treaty,  and  oi^p.  whîoh  the  paity  claimbg  Uie 

W«  «L  •'  S?"*^?    .**r^,  themselves  wW  thit  Treaty  was  made. 

the  sll  ^"«''^**^*  W«  n»«»«aee,  transmitting  tfiis  Treatv  to  ta  ,i 

the  Senate  for  considération,  the  following  déclaration:  «The  ^  ' 

Tl^Zt  '""^'''S"  «^«rr^d  Treaty,  iscaîSS^  confit  Jd 

Ltmïtiv! Tîl,""  *"  ^,»°kin<n.gree  to  Regard  as  hefnous  and 


# 


'i^^^H 

„ 

^      .' 

.  \ 


..n 


i  <■ 


I    ■'■ 


•         Vj,, 


.r* 


^ 


248 

United  States,  writmg  on  this  very  subject,  says  :  "The  case  of 
pohtical  refugees  haa  some  points  pecuhar  to  itself.  A  nation,  as- 
ife  have^  seen,  has  a  nght  to  harbor  such  persons,  and  will  do  so 
nnless  weakness  or  poKtical  sympathy  lead  it  to  the  Contran? 
course  ;  but  tfiey  may  not,  consistently  mÙi  the  obligations  o^ 
faendshyj  between  states,  be  aUowed  to  plot  against  the  person  of 
«le  sovereign,  or  against  the  institutions  of  their  native  countrr 
S"  *ï  *i    J^®  T"^^  ^"^^  *®  *"*^  ^'^  punishment  of  which  the  laws 

be  remanded  for  tnal  to  his  native  countiy.»  It  seems  most 
Btrange  thattfie  Executive  of  the  United  States,  in  1865,  should 
clam  the  extraditaon  of  the  prisoners  under  thé  Treaty,  which  their 
Executive  of  1842  who  made  it,  declared  to  exclude  aU  poUticÏÏ 
™^Z!  ""Y^^f^  «^f'ge«  arising  from  wars  or  mtestine  com- 
S  rT«    l'^/^l^^d  the  doctrine  of  the  inviolabilify  of  asylum 

^Lrï^?*^?  ."'  ^"^  ^'^^  ^^"  "^^  ^«'^'iWy  exprissed  by  the 
most  distinguished  statesmen  and  writers.  Sir  Comewall  LW 
in  hw  book  on  foreign  jprisdiction,  says:  «  The  crimes  to  which  ' 
ÏÏfîlTf  P'®  of  mt«mational  extradition  properly  applies,  are  those 
-Jhich  concem  the,  hves  and  property  of  indiVidualsf  a^d  which  the 
entire  nation  has,  therefore,  a  common  interest  in  repressine.    If 

■  S„?7™"?T?7®'^,^'^^*'*^y  eouitable  and  dispMsionatt,  the 
pnncige  might  be  safely  extende^  to  polîtical  otfenders  ;  bit  in 

«tl«ï«T'"^'?'5  ^^f'"^  ^^""^^«'  tiie^Gôvemment  may  be  co^ 
S  înïfr  ^  mterested  party,  and,  therefore,  anotiier  govemment 
co™tef  ^""^  up  persons  charged  by  it  wiA  crimes  of  this 
complexioù  The  question  seems  to  involve  a  conltest  betwèen  the 
Uovermnent  and  a  portion  of  its  subjects  ;  and  the  extradition 
T^'V^^  characterbf  interférence  in  Ae  internai  politicdS 
llT^Z  "^i^-    1^"  «'«?«..*l^efefo':e,  of  civil  war,  Vf  révolution, 

LIÎ5     r?^?*'*^.P'^°"P*'°^  ^«*^^°g  ^  *^«  existence  of  a  large 
b^y  of  pohlwal  exiles,  a  powerful  state,  which  does  not  fear  the 

im&T»î*?-*ÎT^#r'™"?^"*  ^*"^««*^  ^^  *h«  question,  is 
rmpelled  by  the  dictiites  of  humanity  to  affor^  them  an  asylum,  ^d 

^ÎT^u  S?r,'"*''^*ï"^  ^^«"  âemanded-  Lird  pCrston 
Tnl^  f^-'  '^^5  °^  hospUality,  the  dictiites  of  humanity,  S 
gênerai  feehngs  of  mankind  forbid  such  surrenders  ;  and  anv 
mdependent  Govemment  which  of  its  wm  free  wiU  Wre  to  mS 
such  a  surwnder,  would  be  deservedly  and  universilly,  stigmatiaed 
ï«t^'?^»«*''^  dishonored."  If  the  interprétation  ^  KeTtî 
the  stiitute  be  such  as  to  étclude  ail  politicïl  offenden,,  it  fZZes 
necessary  to  détermine  what  may  be  cdled  a  politicaJ  oS^e 
in  ^r*^*  «ost  çracticàl  definftion  is  certainïy  the  on?Tontained 
m  Président  Tyler\  message,  t.e.,  a  criminal  charge  arising  fmb 
war  or  int^tum  coibmofaon.    Wtf  may  ewwîder  te  tocfa  anrtwt— 


« 


t  '   l 


*■• 


i^\ï.^â^^JèA  i^Hmk 


249 


in  the  Msertion  of  VriS   î?  self-gratification,  but  origînited 

correot  or  a  felse  aatin»  J^V     '  «^««V*^  by  him  under  a 

beavi9latioîomeScili:i^!:if?^^^^^^  tl.^*  ^«^°*    " 
Thèse  e:^ceptionfl  of^l&i  !!L'  *  V^]^^}^^  offence. 

hâve  any  ^aSbTmuBrJÀ^^^  **^  ?^*^  *«*«,  if  they 

stroggle,  and  ail  IS^lJ»'*™*'^'?  of  propertv  in  a  politîcà  . 

ftçtofkaiing,ofKin^^r^}1*^Z»?l^^^     Ifthen^ere 


fiwt  of  kiUing,  of  robbiuffTr'i}  jw"^  "?"*  *^°/    ^^  *«  °>«re 


jjgf  partie»  yh<Mn  a  Bncittl.#e^ 


.  «B  «««^  «ii^^iSrK-  ^s'si'ir 


I  ' 


t^xf/^   ,   JHS-T4 


«^ 


,:         f^-j 


N 


•  il 


I,    V 


-t    .«•( 


jn  fevor  of  poHtical  ofkncA     n  ;^     8eMe  in  tbe  exception  made 

templatedbyTtîear°ronlvb«T'**^*^^  ' 

and  unquestionabirSïïnA     ^^'^^^"^^«^g^^  1     ' 

by  ail  manS .  a^dTÎ  .    ».  ^  municipal  laws,  admitted  aa  such^      - 

^de?wTlC^^ir\^îl  ""  ^"'^^J^ 

doue.    W^enaSCSen  cc^Jnr^  '^f"  ^^^  '«^^      '     '" 
I  force  of  one  of  i^T^i^Z^ti^J^  ""^'^^  "'«^«^ 
i  irregular  unorganized  bmd  *SS.     I^  7^  'î'^  ®^««  V  an    • 
the  Bole  View  ofWnXrZI     ^iT*"^  ^*' ^'^  *^  ^^ 
H  aa  a  crime,  the  btheTSL  S^* .  ^'  °"^  P*^  ''°'^^«'°"«       ■ 
wortèv  aot.     ForeiS  Cimenta    n.*T*'  ^^"1^  '^^  P«^ 
quali^  it  as  a  crimê^C^"   '  or  foreign  «bunals,  <Mmnot 

àepStie8,aaVc™emd4'kr^^^^ 

a  case  would  he  Aa  «w„-i   v    j         '-"^^  *'*°^  extradition  in  such 

bi%  0?  wC     mISLI  *^°**«»"'«5t  of  tbe  principle  of  inW  S 

ordLy  ^^Uonffj^'''  "^^  '^«^*  **»  <'o°'bme,  to  foret 

eîe^fCTb^^"^^^  r^^  çommunity,  to  deprive  thetn  èf        / 


H»r 


1 

,1 

1 


"1        ' 


\'v- 


ifi     >!• 


aaoïi  criminal  ;  but  eyery  mm  who  can  appreciate  right  aiid>liberty 
»  highly  interested  in  jealoudy  rewsting  thé  «xtenâon-of  this  ptjik- 
ciple  to  political  offenders.    God  and  cousoîeaoe  may  oonunand  ohr 
résistance  ^ainst  aggression  or  illégal  arbitrary  power  ;  we  may  be 
crushed  in  the  attempt,  we  may  hav«  to  flee  for  refuge  eut  of  our 
coufttry,  and  a  précèdent  in  such  a  caae  fis  this  l^scomes  a  rule  of 
international  law,  and  it  would  be  invoked  and  appUed  against  ua. 
Whenever  a  party  or  a  nation  is  interested  in  obtaining  the  ex<wc 
dition  of  ijidividiuils  whtf  hâve  been  engaged  in  civil  irar,  it  p  eagy 
to  make  out  a  prima  fade  case  of  murder,  attempt  to  mftMôn 
robbery^  or  areon.    No  man  who  has  acti?ely  participated  in  a 
civH  war  haa  not  killed,  or  attempted  to  kill,  or  destroyed  property. 
The  pretension,  therefore,  to  allow  none  but  the  évidence  of  the 
party  clajming  the  extradition  to  be  adduced,  to  refuse  to  the  pàrty 
iiWf  licated  the  right  of  showing  ,the  political  connectioii  of  the  deed, 
ifl  too  absurd  to  be  disçùssed.    The  simple  enunqiatioir  oî  sudia 
proposition  bears  its  oWn  condemnation.     How  eould. a  political 
refugee  ever  escape  extradition,  how„  could  he  ©ver  iavoke  the 
sacred  right  of  asylum  ?    It  would  be  a  delusioù,  a  mockery.^    To 
«arry  out  the  princijple,  to  protect  the  refugee,  it  is  indispensabk 
tibit  the  character  of  the  individual  and  the  ÙLOta  should  be  shown,  in 
j      «frder  to  establish  that,  in  the  act  complained  of,  the  principe  ele- 
W      ment  waa  poUtical.     The  moment  extradition  is  demanded,  the 
accused  has  a  right  to  set  up  and  show  that  he  is  a  polilfcal 
offender,  and  the  judge  is  bound  to  allow  évidence  to  substantiate 
ms  allégation,  which  if  proved,  négatives  ail  criminality  and  ousts 
mmofalljurisdictioninthematter.    I  would  contend  fartheï  tiiat 
the  judge,  as  rep^esenting  society,  intrusted  with  the  safe-keeping 
of  our  liberties  is  bound  to  ascertain  that  the  party  brou^t  before 
mm  la  not  a  po^fibal  refugee,  and  the  oflFehce  not  of  a  political 
character  ;  and  in  a  case  of  doubt,  he  is  bomid  to  disoharge  the  pri- 
soner,  because  ^  he  be  a  political  offender,  h©  is  innocent  and  the 
judge  haa  no  jurîsdictio^  over  him,  and  he  wôuld  be  .illegdly  using 
his  authority  as  ui  instrument  of  oppression'^  and^  vengeance.    In 
any  brdinary  (iase  of  crime  concemmg  any  outrage  agawst  the  laws 
of  nature,  for  the  punishment  of  which  the  Treaty  provideB,wheni» 
IS  not  a  political  actj^  the  right  of  extradition  is  universally  ad- 
imtted.    But  in  thid  oase  you  bave  one  third  of  the  nation,  one 
of  the  cont^racting  parties  to  this  Treaty,  who  raise  tinaie  voiée 
Afflùnst  the;  application  ;   a  large  portion  of  the  community  on 
V»  T     ®  ^®^?^f  *^<^8e  stipulations  wére  made,  and  in  whose  name 
V  tne  extradition  of  ti»  prisoners  is  demanded,  hâve  constituted 
^^^tiiemselves   A  distinct   political   organigation   and  Govamnionf 
^kûOwlôdgea  M  such  By  CFreit  Bntain,  and  Ûiey  demand  pnH 
tection  for  the  prisoners,  whom  they  déclare  to  be  innocent  of 


itii  Jtv  i^u*- 


v4â 


.X 


•\251  \ 

ftli  mme  and  entitléd  to  the  coùBideration  and  respect  of  the  i 
wo^l|.for  the  very  deed  for  which  they  stand  now' actyosed. 
ITBefare  engaged  m  a  murderous  conflict  ;  every  individnal  in  that 
uWbrtunate  community  is  engaged  in  it  as  one  of  either  party,  and   • 
stendsin  deadly  enmity  to  every  man  of  the  opposite  party,  and  in 
thw  stnfe  Ihe  injunés  done  by  an  individual  of  one  party  to  their 
enemies  nraët  be  presumed.and  held  to  be  an  injuiy  of  the  partv 
«nless  thé  contrary  appears.    Vattel,  p.  424— «  A  <m  war  bre£ 
the  bands  -of  society  and  govemment,  or  at  least  suspends  tlmr 
force  and  effect  ;  it  produces  in  the  nation  two  independent  parties, 
who  consider  each  other  as  enemies,  and  acknowledge  no  common 
judgo.     Xhose  twô  parties,  thefeforè,  must  necesôafily  be  con- 
ffldered  as  thenceforward  constituting,  at  leàst  for  a  time,  two  sepa- 
'    rate  bodies,  tw)  distinct  èocieties.    Though  one  of  the  parties  may 
hâve  been  to  b  ame  in  breaking  the  unity  of  the  State  and  resistmg 
the  lawfiil  authority,  they  are  not  the  less  divided  in  fact.    Be- 
«des,  whQ  shall  judge  them,  who  shall  pronounce  on  which  side  the 
nght  or  ihe  wrong?    Qn  earth  they  hâve  no  common  superior: 
they  stand,  therefore,  in  precisely  àe  same  predicament  as  two 
nations  who  engage  m  a  contest,  and,  being  unable  to  corne  to  an 
agreement,  hâve  recôurse  to  arms.»    The  prisoners  are  Southemers, 
Confederates,  enemies  of  tiie  North  ;  they  were  actively  engaged 
in  Chicago  about  the  great  object  for  which  their  countiy  is  îuffer- 
mg,  and  for  which  thejr  so  heroically  contend.    They  were  conspir- 
mg^âgainst  their  enemies  in  their  midst,  on  behalf  of  their  countVy, 
A     ?.  i  "f  ^^f  "y®^-   ^^"^  attempting  one  phm,  they  decided 
under  direct  and  positive  orders  from  their  Government,  to^njake 
an  attack  upon  some  open  town  in  the  enemy's  country  t^irn 
and  plunder  it.    Their  lea^j^Bennett  H.  Young,  had  his  c«8- 
mon  ;  tiiey  were  soldiei»  ;  th^okyed  :  the  work  oflFered  was  hostiKty 
to  their  enemies  ;  they  undertook  it  with  pleasure.    The  sole  end  - 
and  motive  of  their  action,  was  thdr  counta7's  good— the  rum  and 
destaTWtion  of  their  enemies.    Can  itfl^oubted  for  a  moment  that 
they  were  actuated  by  any  other  feeî^but  that  whjÉMiimates 
the  South  against  the  North,  that  it  was  the  spirit  ofTBÎotisiai  or- 
rebelkon^as  you  may  çhoose  to  caU  it,  whicL  prompted  them  and 
■     çjiped  them  on  to  the  exécution  of  this  pkn  ?    No  ;  thè  évidence 
leaves  no  doubt  on  this  subject.    It  is  unquestidhably  a  part  of  the 
great  contest  carried  on  between  the  Nort^  and  the  Sowth,  a  part. 
,  ai  incident  in  this  bk)ody  drama,  and  tending  to  the  same  resuit. 
;  "  "nn»w*akaWy  a  pohtical  aot.    The  cijcumstiuices,  the  natiire 
of  the  deed,  the  oharacter  of  the  indivi<Ràl8,  their  organlzation,     . 
~^adtemibk»plaft«dift-m7W8^^  ^ 

aw  weU  execnted  political  movenient.  The  movement  was  ordered» 
the  money  was  fumished  by  the  weU  known  agents  of  the  Confeitev 


m 


^  i 


f 


il' 


("1' 


Il    ' ', 


i 


nm\ 


if' 


pSste»  Af;  éw«S:« . . 


il 


252 


"  r^te  Goveifiraent.  fille  political^'lch 

motive,  %uch  as  esf  blished  ^«trfilence,^ 
mi  18  an  unquestionalle  ïole  of  Ib^^itiom  _ 


VI  a  u^mgerem  o.cate  ai^enemîi 
and  it  is  alâo  a  rule  rf^r,  tBat^ 


<n*iiiiiinaKty. 
the  cîj;izena 


M 


9m 


s 


•'    N 


v^^t.. 


ence,  Aat  same  diidl^ç^  which  existai 
Acte  «Jfjff^  be|ween  #  bellige 

*"*'*"'°  .  j;  are  not  crimes.    '-^'Mpr  We'^ei^âi  BRjQkàf 

aft.  d^e,  tKe'  mtei&MafftîS 
H»  ,00116  of  ih&t  animée  wto  Wm  neceésary 
I  «  cpmmal  offence  ;  because  the  iction  m 
(lir©«ted  aga^nst  the  individoal^  but  against  the 
Ment  case,  it  is  évident  tli^ât  was  not  the  pro- 
,  dr  Me.  ^Sowles,  or  Mr.  i^nhop  ^the  prisoners 
^léir^^'X"  ^"' mY       .  Plunder,  but,  the  propt^  of  the  enemy,  of 
•  et'  lÉr{    ^^«~  1^0  P'^cipîe  more  "Subted  than  tiiS 
.    î^the  mt^t  alçne  can  cieate  crime;  and  as  «Sprities  from  the 
'  gliïmtedStatès  must  be  more  readily  accepted  to  ISh  ^^^bt 
•"       C^I'  I  wo^d  refer  .to  Bishop,  1,  §227:  «/lî£^  is  oiJyTe 
#tenon  b;^  which  the  guUt  of  men  is  to  be  tested.':-^  It  is  whether 
;        ifte  mrnd  is  cnmmal.    Cnminal  laws  relate  onlvto  crime.    And 
Z^''  "^  phJosoçbifia^^  spéculation,  nor  in  reUgiîJor  ino^  sfnS 

deemed  guDtj  uJess  hia.  mmdf  were  so.    It  is,  thereforet  a  prin- 

S  w  *2  ft^  f  î^  ^^^^"^  ^*«\*'  ^*^o«*  which  it  camiot 
IZ:  We^fi^d  this  doctnne  laid  down^ot  only  in  the  adjudged 
cases,  but  m  vanous^ancient  maxims,  such  as  *  actu,  nonfaJre^ 

unless  his  intention  were  so.    Ifc  cannot  be  robbery,  because  onen 

IZ^fT  ^*T"  '^'  '^'  ^^t'^  "^^  *^«  ï*^  of^itions Tes  'n" 
S«f^  ^*  o^ggression  by  the  subjecte  of  thé  revolted  country 


fSÈbs-, 


''>, 


-»— «.i  V*  ni«,  wmuu  enjoins  ine  8UDj< 

the  enemy  s  subjecte,  impUes  a  gênerai  order.    j 
subject  carry  on  war  or  make  captittes  it  may  be 
the  sovereignty  pf  his  own  nation,  Wt  if       ' 
nafaonal  law^^MaUeck,  a  major-generaU 

«  ••  n"-^'  aB^^'y  ^®"  8*a*«d  thàtwari 
officijMly  re<MKd,makès'lègal  enemies  of 
Der8,of.the  hostile  Stat^,  thatitaiso  extent 
to  one  belligerent  the  right  to  deprive 
Wuch  might  add  to  his  strenjîth  and  1 — 
ties." 


[lauthorized 

against 

^biï'of  inter- 

States,>|). 

^^^  declared,  or 

[mdividual  mem- 

ft  uid  gîves 


^^^â^add  to  his  strength  mhmb^ïMSm^n^ï^^it 
BynkerBhoek,  p,  4  :  "  A  nation  which  ha^p^mother  i» 


«J*;fiî-i-iiAi*» 


'258  ^  - 

*î- -*«  «?ct  may  certabl^bl  ThVo©  of^^ S  flr^""^'^ 
nation  thinks  proper  ;  nor  V  the  war  to  cea«e  a«^«ii  î  ï'''^®^ 
received  a  réparation  or  eauivalenrf/T*^!^  •  ^i***  ^^®  ^«» 
^hole  commonVealth  and  aTthe  li^Jf    «^juiy  suflfered.    The 

contained  within  it  blnVl  t^e  3'^-^^*'^  ^  ^-'^^^ 
at  war,  and  in  the  same  mander  m  wTmteivi  ^^°"?,  «^«7  ^^e 
and^up^  au  the  property  of  our  ?ebter  Jf.  "P^''  .*^^  P®"^» 
seize  thTwhole  o/the  Bu^iecteiLS  Sî^  •'  -I  *  T.®.^e'gn  «»  war  may 

posingeventhepa^fes^lhth  ^u^ 

to  act  as  thev  did-  guniv^W  !k     ^  ï  ®/^' ^  *<*^^eir  right 

auihoritv,  or  b^nd  t^S^  '^Z  'fii^t^Jr^J  5^^' 
deceived  aa  to  iheir  rijrht  and  ditt^nfM  •'''F  ',?»<;  they  had  been 
Government,  stUl   f  Th^y  Z^^^^  *^!  «'"d^"  <>{  their 

grounds  and  with  suSnf ffiorit^/hevwn  1?^^!"?°°  P^^P^ 
to  American  criminal  laW,  be  held^;Sî  T'ï'  ^^  accordîng 
crime.  1  Bishop,  §  242  lâvVdAwL  *f  T^"**  '  î^^'e'^ouJd  be  n? 
légal  njle  is  cl /riy^tl&^^^^  'l^he 

accused  must  dépend  on  the  circih««SZf  fû  ®  ^^^  ^^  *^û 
Hère  the  rule  iafthat  ?f  orL^^^rM*"  ^^^  '^PP^*''  ^'^  ^°»- 

existence  of  the  factewhîche^me^K  *'  ^'^'^'  *^« 

idea  a<5curatelv,  if  wiC  hSVor  .,    r^^'  <^^L*^«^Pre88  the 

in  them,  he  is  legally  bnScént  tho„I  î^'««««e»  ^  does  believe 

taken."    &  thore  to  bTcSZÎÏS^^  .i*  *""^  ^'^^  *^*<^  ^^  ^«s  mis- 

/«rani»;  which  warindiswS^^^^^  Sî*  "'""  ^"^  *^^*^«*  «^»^«» 

offence?    W^  ieM^^TtLl '}^  constitution  of  crimihal 

n>otire,theimX^wfr^^^^^^  to  indicate  it.    The 

Frhaii,  but  biSr  Eé™  pî^f?*'""'    ^  "°  °*^«'  countiy, 

men  b^Vound'whXou A  pr^p'^^J^^^^^^^      twenty  yo  J^ 

them  to  a  certain  almoet  ignoSniS,™\*ï?""  ^^•^''  ***  «^^^ 

a  town  of  four/thousa^d  fhawCte     lî  iL^/"«  possession  of 

pnvate  plWdér  is  excludedXT^^  °^  P^'^op'J  Profit, 

must  be  ont |U|Lldli«  Moreover,  the  offence 

<ieinandin^lSibttTff  hJ  ?'  ^^'"''^  "^*^^  «^""^^ 
légal  deS)n  mS^  eï«âS;^^  \*  ^'î™®  according  to  thei 
P««^  Te  Sea^     tÎ?^*"*^-  *"^  •?,"  ^^^^àed  only  by  the 

mOsÉ  fc  one  which  «/FT  I^|ted  fc^^t'^r  *  r  ^'  '^T' 

^Slf^lH^^TChS^^^^^^"^*"  comridered 
Ihe  cna»  nidibb^  ope  uniterwUly  f^M^^sw^y  aU  th# 


^ 


m 


(I 


'%       .  (| 


)  W 


■^  l> 


r 


254 


Umted  States  parties  to  the,  Treaty,  not  solely  by  the  définition 
t  of  one  or  ten  States.    Would  the  parties  be  tried  or  held  as  félons 
''  in  their  States,  in  Bjchmond,  in  South  Carolina,  Georgia,  Tennessee, 
or  p  any  of  the  Confederate  States,  yihù  were  parties  to  Ûùs  Treaty  ? 
Cin  it  be  presumed  that  they  demand  the  extradition  of  thèse  men? 
Assuredly  not.    The  conOrary  is  the  case.    Can,  then,  our  Govern- 
ment and  our  Courts,  in  justice,  as  a  fair  interprétation  of  this  com- 
pact, yield  to  the  exasperated  feelings  of  a  section,  however  large, 
however  powerful,  of  the  contracting  parties,  who  choose  m  stamp 
an  act  as  criminal  for  the  sole  purpose  of  using  the  Treaty  as  an 
en^ne  of  oppression  against  the  other  section.    Every  bad  case . 
foun^ed  on  wrong  princlples  and  bad  la^  is  prolifîc  of  cÛemmas. 
..  Thé  United  Stettes  contend,  and  this  Court  bas  decided,  that  the 
Treaty  in  question  not  oâly  covers  û£fe;ices  againstthe  United  States 
«p  nèmine^  but  o£fences  against  eàch^  State.     We  are  bound  to 
acquiesce  in  that  décision,  but  it  inevitably  leads  to  one  of  two  con- 
clusions— firsj;,  that  the  loffenCes  so  enumerated  are  to  be  those  crimes 
as  definêd  by  common  law  ;  or  secondly,  those  defîned  by  the  Statutes 
^  of  each  separate  State.    That  statntory  crimes  are  not  intended  to 
be  included,  the  Executive  of  the  différent  States  hâve  repeatedly 
declared.    It  isuniversally  helà,  that  by  the  Constitution,  statutory  ' 
offences  are  not  to  be  included  for  extradition  between  themselves. 
No  statute  of  Vermont,  therefore,  conceming  robbery  or  murder, 
affects  this  casé.    Vermont  might  make  stealing  of  a  horse  murder. 
In  the  Southern  States  stealmg  of  a  negro  is  <^|^tal  robbery. 
Dùellingîs  allowed  in  some  States;  in  others  it  is  lûi^e  murder  by 
statùte.    The  slave  trade  is  defined  as  piracy  by  some  laws.    The 
offençres  enumerated  in  the  Treaty,  for  which  extradition  alone  can 
.  bô  granted,  are  arson,  robbery,  forgery,  mrafcy,  murder,  as  defined 
by  coùûnon  law  in  ail  and  every  State.    The  question  is,  therefore, 
repeatecL  whether  by  the  common  law  oi^  Florida,  Carolina,  and*  ail 
the  Contederate  Btates  controlled  by  the  state  of  war  now  existing, 
the  offences  against  tlie  prisoners  would  be  admitted  as  such. 

The  political  character  of.the  deed  would  be  of  its^lf  sufficient  to 
dispose  of  the  présent  application,  and  the  case  of  the  p^ners  might 
rest  surely  on  this  ground  alone  ;  but  independently  of  qiis  reason  the 
military  character  of  the  prisoners  and  of  the  deed,  ^Vld  also  be  a 
complète  answer  to  the  demand  for  their  extradition.  It  is  estab- 
lisfaed  beyond  a  doubt,  that  the  prisoners  Mfere  solcfiers  jegijdarly 
enlistcd  and  in  the  active  service  of  the  CoHfederatef  States  at  war 
witii  the  United  States.  Great  Britain  and  ail  the  civilized  world 
àcknowledge  them  as  belligerents.  The  moment  it  is  proved  that 
thèse  meawere  regtdar  soldiers  of  the  Southern  Confederacy,  duly 
=^«M»mi8«M3«d^ or^^mÏKed^ai&d^aiCti&g^with  the  tumofem  of  tiheir  Qt<iy^- 


emment,  there  ends  ail  question  as  to  the  application  of  the  statute. 


iiii^. 


?, 


.   256"        ■  .■  ■  > 

There  can  be  no  possible  violation  k  the  niumciDal  kws  nf  th^ 
«nemy  by  soldiers  of  the  belligerejt  TbTZï  J^  u  a-  ^ 
*6.the  e^emjVlawB,  because  fhe'towb  A7st2  "nf 'K 

^1  qWm''^.  mtematiori4l  law  deVpted  to  wi^  2  BurlamquT 
ti  *•  15°'*  ^**''*°'  ^'^^^  «^««î  '^o  bounds  to  the  rights  SSe 
ït  18  yerydifficult  to  detennine  preciselv  how  fer  it  î?  Jm^IÎ  f!î 
^tend  acts  ofhostili^y  even  in  il  m^ti^Ir^^'^^SZL^e 
of  our  pei-sons  or  for  the  réparation  of  damages,  or^^XS! 
option  for  Ae  future,  especially  as  those  who^eng^  b  l7ZÎ 

S^  or  ani'f  ^^  -^i^^*  "r*^^^"*'  ^'^  ^*^  hÇerty  to  mfde- 

SST'  t  ^^  "^'^  ^^^  ?">?«'•   And  hère  it  is  to  be  db&erved 

acM  01  fiostilty  beyond  the  orders  prescribed  ;   vet  this  is  not 
b«^  they  suppose  the  enemy  is  injured,  but  b^caC  fl  neces 
^M^.the  generah  qrders  shoulcf  be  obeyed'  and  that  nrihLrv  S 
^e  should  besbictly observed.   It  isLso'iTeoZuTnt/f  thèse 

ZS''  ^À^fT  \^"'  ^  ^  J"«*  ««•i  ««lemn  wa?,  Tave  pushed 
rf«ighter  and  plunder  beyond  what  the  law  of  nature  perafte  are 
nofc  generally  looked  upon  as  murderers  or  robbers^norS  héd  is 
«acA.   The  custom  of  nations  is  to  leave  this  pomTto  ÎKdence 

^SirmTbrorriï-  """  ^t'  than^volve  thVmrC itf 
wouDiesome  Droite,  bytaking  upon  them  to  condenm  either  nartv 

^opie^^t  the  law  of  nature.    Let  us  suppose  that  in  the  inde- 

pendence  of  the  state  of  nature,  thirfrjr  headsTfanrilies  Tnhabitenta 

lÎLT^'lS"^*^'  «^««W  haVe  enS^d  înto  a  ^^e  Cattck^^^^ 

«ffltdJ^Tr'^"^  t^^^?'^^  °^^^^'    I  s  y,  thaï 

l^^^WÊtU^^"  had  not  j^oined  the  league  on  either  side, 
Sa  i7^  KT^'  '^  "»«rderers  or  robbere,  mj  of  the  twJ 
ç»rties  whi^oufd  hanpen  to  fall  into  their  hands:   ïLy  couîd  noî 


'k 


Srt  Ai  A.  '     ^ — K^vu  w  x«u  uiTO  meir  nanas.   'j 

^  it  dunng  the  war,  for  that  would  be  espousing  the  qu^rel  of  one 


paw  in  thef 


rly  renounoed  the  right  of^Xïng  with  wEh3 
"tf-    Muôh  les»  oouW  thej|iiptermeddle  after  the  war 


:  i< 


ylli.^î, 


J 


fii 


ï"  »J 


.p*'' 


L   , .  r- 


256 


% 


4 


€\    ■ 


s'W  . 


12^'  !!?T'  ^  '*  *°'^,  '^^^  ^  «"^««ï  '"'»>0'»*  «om«  accommo- 
dation or  treaty  of  peace,  thé  parties  concemed  were  redpSy 
^harged  from  aU  the  evils  tLeyhad  done  to  each  otherVThî    ) 

For  f  thoae  who  contii«arraSaa  stiirbeen  ftuthorized  totTê 
cogmancey  the  acts  of  hostihly,  ôxercised  ia  a  forei^^ww  and 
l  consequently  to  punish  such  as  they  believed  to  have^cSit^ 
:    any  injustice,  and  to  take  up  arms  on  that  account  ;  Instead  7om 

troubles.  The  more  wars  became  fréquent,  the  more  necessary  it 
was  for  the  tranqoilhty  of  mankind  not  to  espouse  rashly  oth^tow- 
ple's  quarrels  ^^  establishment  of  civil  SocietirôiJv  renffi 
the  pract.ce  of  those  rules  more  necessarv  ;  because  wte  of  hostiSy 

att^ded  with  a  greater  number  of  evils.     LasUy,  it  is  to  bo 

obwrved,_that  aU  acts  of  ho|^tj  which  can  be  lawfiiylcommitted 

agaînst  an  enemy,  may  be  exercised  either  in  his  tenÉkries  or  in 

ours  ;  m  places  subject  to  no  jurisdiction,  <?r  at  sea.    VXl,  p!  298  • 

m  sovereign  is  the  real  anthor  of  war,  which  is  cpeS  on  in 

%y«  fnd  by  his  order.     The  troops,  officers,  soldfe  and  S      ^ 

generali^  those  bv  whose  agency  thi^sovereigi^  mEC  JS 

only  msh^entein  lis  hands.    Thev  exécute  h^willld  noTC 

\u    •    îî  I«Monex|  ft8,,80ldiers  had  committed  actjof îfiolence 

W^uthonsed  by  th^  s&rii>„,  they  ^ei^  respo4ibW  t^  lem  r^ 

the  acts  were  beyoncl  *e  ordinaiy  tirages  s^ctioned  bTthe 

î^  ^il  u  .»^*r*'*^^  miUiiy  court-martial  and  treated  aoild- 

sZ«^lîi»^'"  ^^^  taken^ftsoner  i«  thflJnited 
„      Status  ,athto|||M|  companioù^^  soldier  #BurloY,  who  has  be^ 
.extradit^  œSSbery,  theyl^d  him  by  courl^iLtial  JS  Aeî 
fntenced„«mdexécuted,hiihasI|ûi^fer,Vr^^  '^ 

îawsofwar.   Tbe  printed  din«^  iûid  regdations  fotXuS 
States'  armies  «ontain  «jjw^^iona  for  caws  of  th»  kkd  tod    " 
provo  condusivelrthataE  Lhion  ¥the  United  sÏÏ^ÏSuC* 

^^?Kr      .       \**ï  «^'^Pïy  ^ithin    miUtaiy  jurisdiction  and 

pnvesdàersofth^.unmunityattaçhingtoprisonewofwar.^^^-      „ 
^mi.  b4  of  thèse  régulations  state^  :  «  Armed  prowlers,  by  wh»t- 

Z  iST  ^^  T^  ^  '^"î^'  ^'f^"ons  of  the%nemy';  tSy 
who  steal  wjthm  the  hnei  of  the  EostUe  army;  for  id  purposo^S 

are  not  entitled  16  the  nrivilfl W«  of  A*  Jx^^lJT^^Y^.  '^» 


.f-L 
II,  •  „    « 


.„% 


32" 


VJW, 


267 

«y  exuuple  be  found  in  the  hw»/»™  ^f 

in  the  open  facfc  of  a  murder  or  r*Cl  î?  V  '^  *  "^''^'^^  ^^^ 

deUvered  over  to  the  enemy  for  Wal  bTforl  Ï!  'T^'  ""^  '«**  «^ 

W»»  m  Spaito,  in  the  coimtrv  of  anVn?  ?  jm  °"°  Wellington 
eren  then  tte  civil  iuriXtion  oL?k-  ^'.ï?  *^  "°*  acknowlâge 
dations  expressif  pS^r?,\T  orl^^^^^^  ^«P- 

to  be  tried  by  the  Spanbh  couVf^  V  •  ?  '  l  ^'^  '^^^  ««"d  them 
to  be  tried  bj  oourt^Sal  «^?t2Lj"'''°*'  ^"*  ^«  «^^«'^'i  theffi 
by  tbeir  own  muflSî^S*^^^  ''"'"  sentencéd.to  b?  hung 

dL  -Jer  ae  Al^'Sioi^^^^^rr'a^^^^^^^^^  ^^ 
mntoion,  hè.be<5omea  au  instrument  of  w^    ![  '®'  ^**  *  «^o™- 

«d  agent  and  reprtoséntaTiv^ofThe  ffi^^^^  P'^'T" ^  *"*<>"- 

he  may  do,  for  Lr^  injuil Ve  c^  fiSf.r  h^^''  Î^"*  «'^«^  "^^ 

■coveredbyhiflconuSsici^hancXK^^^^^  a™lr-"'V?  ^""i^ 

can  judge,  Ist.  vol.  of  his  ^ox^^n^Z^^^^,!:^'^'^  !"^«°*  ^merî- 

p.  94,96,8aya:  «  AlthougUXteo/war nuî^^^^^ 
one  nation  in  à  state  of  hostilitv^vi,  i  P"*«  î?^  *^e  subjects  of  the 
the  customary  law  of  Eu«l  èL^L*  T  f  •  *^'  ^'^«'î  7«*»  by 
uM  %e  enemy.  If  suŒVonfiL^  '^'^"^  "  "°*  aUowe/ tp  f^ 
fcibey  a^  to  be^cons^deZ t  l^lZ  inT''/^  *"  ^™P^«  <ï^^«'»««' 
>  8tet«.  and  are  entS  ^^tà.ZZt  T''^'""^  °"*«'  «^ 
i^W;  and  the  captures  wWch^^v  nf»?-"^'''?*^  *«  **^f"jJ  ' 
aUoSto  be  lawful  oriT    R^f*?^    *^®x  "*  *"<''^  »  case,  are    . 

h08  JE^i^ifchiïlXSess  r^Ltj  '*T.u*  •*°«*««  •»  «fife^i'^e 
theyNhave  not  areTuirSST  r«vf '"•'°?T«"î  »»<*«• 

moderS  warfare.     If  Sev  den^lT         *\^  «'•''gated  ^es  of 
<»mmis^on,theyacr«She^^^^^  the  enemy  i^a 

by  tbeir  own  ^oîerei  Wt  Kly  l^nï?  wl^ 

a  nataonal  commission,  and  within  the  temsTthW  "  •'"**^'" 
M  quite  oear  that  thev  are  r^TZ^Ar^  l  .  commission,  it 
Pjrltes  by  intemS  r^'l^J  Xi^th^^"  «^^l^as 
of  their  cçmmission,  unwareintSî*  IT  J  ^^^  ^^""^^  *®  """<« 
iiiiention  L,  be  DSvSaS'J^J^l^î  I'^'^^^^'  ^^  ??  V^^ 


•1      I     '^f' 


->»   , 


.jak..);^^^' 


n. 

m 

là 


K 


268 

another,  lire  not  liable  to  be  treated  as  pirates  iii  thos  «ice«dmg 
their  authori^.  The  state  b^  ^hom  the  comoûssion  is  grantod 
being  responsible  to  other  nations  fur  what  is  done  by  ibi  eommis- 
sioned  cruisers,  bas  the  exclusiTe  jurisdiction  to  try  and  ponish  ail 
offences  committed  under  color  of  its  authority.*'  ,  The  same 
author  in  a  note,  p.  248  :  ''  Bat  in  the  case  of  ônç  hâvinc  a  com- 
mission from  a  party  to  a  recognised  civil  war,  no  irregolanty  as  to 
acts  done  jwt^bMi^  will  make  him'^a  pirate^  He  stands  in  the 
aame  pomiion  as  if  ho  held  a  commission  nom  iMi  establish^  govem- 
ment,  se  £ur  at  least  as  regards  ail  thé  ^<ii^^  éxoept  the  o^er 

ato  the  contest.  His  acts  may  be  nnlawful  when  measored 
e  law  of  nations  or  by  treaty  stipulations.  The  bdividnals 
concemed  in  them  may  be  treatedf  as  teespassers  ;  fuid  the  nation 
to  whioh  the^  belong  may  be  held  responsible  by.  the  United  States  ; 
but  the  parties  ooncemed  are  not  pirates."  The  saine  author,  p. 
626  :  "  The  effeot  of  f  state. of^ar,  lawiully  deolared  to^e^ist,  is 
to  place  ail  the  subje&ts  of  each  belligerent  powerin  a  state  of 
mutual  hostility.  The  usi^e  of  cations  has  .^odified  this  maxim, , 
by  legalizhig  such  acts  of  hostility  only  as  are  committed  by  those 
^rho  are  autiborized  by  the  expreâs  or  imjslied  command  of  the  state. 
Such  are  regulaiiy  commissioned  natal  and  military  forces."  .  The 
same  dootiine  is  laid  doirn  in  HtiHeck,  a  gênerai  offiber  m  the 
United  Statesl^rvice.  In  his  book  on  International  Law,  p.  806 
and  386\M^^B»srs  :  <*  That  the  sovereign  iE^one  is  to  be  held  guilty 
for  the  jâstr  of  unlawful  war  ;  that  he  alone  is  bound  to  repaiir  the 
injnri@^%itd  not  thoae  who  act  under  his  aiithority."  No  principle 
iseems  to  be  more  clearly  adroitted  by  ail  the  best  Amenean  au- 
thoiitiesV^and  ail  writers  on  international  lawy  àiat  the  soldier'a 
commission  is  a  complète  justification  and  protection  for  idl  his  aots  ; 
that  he  cannot  be  made  responsble,  except  to  his  state  aione,  for 
any  unwarrantable  act  of  violence  ;  that  no  excese  of  violence  can 

S've  to  the  municipal  tribunal  any  jurisdiction  over  hhaar.  No  one 
is  the  right,  becftuse  n<me  has  the  means,  to  judge  hûn,  to  convict 
him  of  the  crime  of  absence  of  authôrity  on  the  part  of  his  gotem- 
ment.  Jn  this  case  the  acts  were  done  in  direct  obédience  to  the 
authoriiy  of  superiors,  wfap,by  their  comimBaion,  delegated  to  their 
officer  the  right  of  wa^g  wàr,  destroying  the  enemy,  and  devas- 
tating  the  coontry.  The  leader  of  the  paHy  bad  a  spécial  com- 
mission for  this  particular  oMect  To  him  was  entriuted  the 
direction  of  the  whoje  plan.  He  stood,  with  respect  to  its  exécu- 
tion, in  the  position  of  |k  gênerai  invested  with  ail  the  autiiority  of 
the  state  witii  whom  aknne  résted  tlfte  responûbility  of  the  outirage. 
The  mode^of  fidfiBing  such  orders  waa  a  matter  for  the  conscience 
-oniy-of"  tliie  offlçyr  atidibrifee  âû^CTTtiës^èwmg'  them.    The 


.■^i 


Amerieané  (^omf^Et^d  bii;tei4y  ;  and  we  find  reconied  in  evefy  one 


/A-'>'v/     '^r 


t.-/ 


'JTJ 


•7 


269  / 

oftheir  writings,  when  occasion  ig  offered  for  comment    a  m^ 
Btrong  condemnation  of  acte  which  they  qualify  ^S^^A^^. 

181J.  8maU,open  and  defenceleas  townawer«  hnmÂJ  LT    ?    ?*^ 
«narméd  and  mioffending  people  wZS     tZ  A™5"^''«  ' 

d«uijd  for  extradition  r.^0  ^  ^V^àXZ  {* Uf^ 

«aejjd^or»^„t,whe.herforo„op„rpo«t  r^^^^^^ 

T.       \  '  .  MoNDAY,  Martîh  2nd. . 

h*  w^    i*"?  *^*  ^y  ^®  interprétation  nniversaUy  «yen  and 

STL^^  ïn''*"  <'^»n*«8*'necommofion8,cannotcome  within 
Ae  tréaty,  and  I  hâve  estabUsîied  that  the  acts^imputed  to  Jhe  nri 

î^  W  -^?-  *°PÎ^*  documents  which  hâve  corne  to  uS  BÎnce 
tibe  httt  sittmg  of  aie  Court,    m  first  is  tfie  despatch  of  K 

ito?rcCrtTfXfe\'T'  rp^r*  ^^*'  p-^^^ 

PHWy  b/tl^  {^S^t^  M?M ''^''  discharged  parties  accused  of 
^^^r  1  ^  T^r^  ^^^  wvemment  for  h&vins.  taken  noasea 
«^^^f  the  Umted  StaS^i  Roanoke,  after  g^^on  boK 

r*™*„  ^ne  other  complamt  is,  that  certain  nassânirera  niw.û«^L 
fi^  Havana  in  the  UzSted  States  >esseTîœ:"Sn^î^elt? 

totS  1  fL  T^ ^'i^^^^  ^^I'  *"^  ^«'^  afterwards  pennitted 


act  ŒL^*o  ^^  P®'**?  arrested  for  a  snpposed  piratical 

act  produced  a  commission,  authoruring  that  act  aa^^^of 


^^^à. 


ê 


/:' 


V 


1'^ 


.  *■! 


>x  .'/'Av*'-vv«  ^V^rf 


^'Wl-^    .   Mf,        ii,         'L.     \    . 


260 


"1' 


'i; 


m4"- 


V, 


--^r 


war  froai  the  Government  of  the  so-cayed  Confederate  States,  which 
are  acknowledged  by  her  Majeatj's  Government  to  possess  ail  bel- 
ligerent  righta."  lie  statement  made  in  this  despatch  affords  <^é 
most  conclusive  authority  in  favor  of  the  prisoners,  to  establish  the 
principle  that  a  commission  from  a  belligerent  is  ail  that  çan  be 
required  to  justify^any  act  of  hostility  against  an  enemy;*^ïhe  act 
alluded  to  in  thia  despatch,  certainlj,  affords  good  subject  for  criti- 
cism  by  the  rules  of  war.  Secretly  and  by  disguise  entering  a  ship 
as  passengers,  and  then  rising  on  the  crew,  taking  possession  of  h«r 
and  destroying  her,  might  be  qi^estioned  as  a  legitimate  or  regtjar 
act  of  war,  sanctioned  by  modem  usage,  but  t\m  question  could  «ot 
be  raised  after  the  production  of  the  commission  ;  the  only  justifi- 
cation required  was  the  commission.  The  other  and  a  most  impor-- 
tant  document  is  ,the  report  of  the  trial  of  the  unfortunate  mb 
Beall,  who  was  acting  under  the  orfers  of  Burley,  who  was"  extr^- 1 
dited  for  robbery  by  the  judiciary  of  Upper  fianàda,  althdugl^  thè 
offence  was  identically  *the  same  as  that  of  Beall,  his  subordinate. 
Beall  was  brought  before  a  court-martial  and  tried  there,-n#  for  •*- 
robbery  «but  for  a  political  and  militair  offence,  the  violction  of  the 
rules  of  war.     The  charges  are  specified  as  follows  : 

'i  Spécification  1. — In  this,  that  John  Y.  Beall,  a  citizen  of  the 
insurgent  State  of  Virginia,  did  on  or  about  the  19th  4ay  of  €ep- 
tember,  1864,  at  or  near  Kelly's  Island,  in  the  State  of  Ohio, 
withoùt  lawful  authority,  and  by  force  of  arms,  seize  and  capture 
■the  steamboat  Philo  Parsons. 

"  Spécification  2.— -lif  this,  that  John  Y.  Beall,  a  citizen  of  the 
insurgeât  State  of  Virgniia,*lid  on  or  about  the  \9th  day  of  Spp- 
tember,  1864,  at  or  near  «aiddle  Bassljdand,  ia  the  State  of  Ohio, 
nvrithout  lawful  authority,  and  by  force  m  arms,  seize,  capture  and 
•  èfink  the  steamboat  Island  Queen."  ^        . 

;  i  Upon  this  accusation,  the  United  States  authoritiea,  through  thè» 
Jtwig&  Advocate,  deolared  that  this  very  offense,  for  whioh  they 
obtained  the  extradition  of  Burley,  Was  a  political  and  a^Miilitapy 
oflfence.  They  positivély  declarèd  that  the  offence  is  not  a  civil  <:^ 
mtmicipal  one,  |hat  it  cannot  be  the  subject  matter  of  trial  by  oi;di- 
nary  Courts  of  Justice.    Hère  are  lus  vei^  urords  :     :        . 

"  I  was  villing  to  admit  that  Beji^l  was  a  rebel  officlr,  and  tiiat 
'"■  lâl  hé  did  was  aUtihorized  bv  Mr.jDavis  ;  becaus^^in  my  view  of 
"the  case,  dl  that  was  done  by  the.  accused,  being  in  violatioD  of 
<**.  thé  Iftws  of  war,  ho  commis^on,  command  ojr  manifesto  coold  ins- 
*«  tify  his  aots.  ^  4  "' 

"  It  is^tme,  that  ifllt«se  enoipities  had  beep  ç^unitted  ip  time 
**  of  pèace^  5r  by  ordinâty  citizèns,  rogueg^t^jadtd^parâdoeg,  (^<y 

enliUed  fo  the 


mrahi  hsve  been  nrere  nramoipid  or  civil  _. 
-"  tïatorii  would  bô  amenable  fo  the  civil  Cou 


■*'^ 


f  i 


y 


•-■i,' 


261' 

"  ■"ittedlr  S^S  and  Eili""''  '"  «^5 «'.  "hen  ol- 
;;  easily  deterTned'.    &'£ S^  rb^^'e^XXT'  '^  ""^ 


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'       ;         .  >  262    . 

convey  a  message  to  anoljjèr  division',  if  found  within^is  lines,  the 
enemy  la  justifiable  m  trying  them  and  executing  them,  but  the 
-  victims  are  devoted,  sometiiàes  the  most  noble  soMiers.  They  are 
m  conscience,  in  the  eyes  of  the  world,  and  before  God,  free  from 
gmlt  of  ai>y  kmd.  The  case  of  the  unfortunate  Major  André  is  a 
striking  illustration  of  this. 

♦u"'^*ï*^®?^'"n'P'^^'P^^'°^*^^''*^®-     Itwaa,itmighthavebeen 
thought  by  the  Gonffederate  Govpmment  of  great  politisai  moment, 
ând  dictated  by  the  Ijest  reasons,  to  order  this  raid  in  St.  Albans 
Bemg  unaWe  to  cfièct  it  by  an  army  sufficiently  strong  to  run  oVer 
the  whole  terntory  as  Morgan  attempted,  they  caU  «pon  soldiers  to 
do  it  by  M-fafice.  byreachmg  that  spot  in  disguise  and  ttien  to  levv 
the  contnbuti.  »n,'  or  plunder  and  destroy .     They  did  so  boldly  and 
o|>enly  m  brodd  day  light.    They  were  liable,  if  taken,  to  be  shot 
on  the  SDot  ;  httle  chance  could  they  hâve  of  escape.    If  they  had 
been  talK^-m^the  exécution  of  thèse  orders  by  the  enemy   and 
tned  and  conde;nned  hy  a  military  Court,  would  they  not  hâve 
been  innocent— could  they  not  feel  in  their  conscience  that  thev  ' 
were  not  cnmmals^?  ^ 

ItMa  been  said,  and  it  will  be  probably  repeated  liere,  that  this 
18  not  a  proceeding  sanctioned  by  the  law  of  modem  warfare 
Admitting  it  was  a  violation  of  the  usages  of  war,  is  there  accord- 
ing.to  the  lawsof  nations,  a  tribunal  in  any  country  entrusted  with 
the  po^er  of  judging  nations  and  condemning  their  policy  '    If 
they  deem  it  expédient  to  deviate  from  the  rules  prescribed  by 
justtce  and  humanity,  they  are  not  accountable  to  other  natioiiB 
their  equajs  ;  for  mdependent  nations  acknowledge  no  superior  on 
earth.     Xftw  is  an  elementary  principle  of  the  law  of  nations.    The 
only  quesbon  therefore  can  be  whether  it  is  an  houtUe  act  com- 
nutted  by  an  enemy  against  an  enemy,  or  by  the  soldiers  of  one  bel- 
hgerent  againât  the  enemy.    Takmg  it  to.be  an  unjustifiable  violar 
tion  ol  the  most  unquestionable  rules  of  warfiire,  still  it  would 
hj  an  act  of  war  ;  irregular,  if  you  choose,  but  nevertheless  an  act 
war.    It  faiight  be  a  violation  of  the  rules  of  war,  but  it 
could  not  be  an  mfraction  of  the  statute  of  Vermont    It  midit 
be    censurable,  politicaUy  immoral,    but    not    criminal    in   Se 
civil  or  mumcipal  sensé  of  the  word.     It  never  could  be  defiiled  • 
murder  <m  robberjr,  contemplated  by  the  treaty.    I  contend  how- 
ever  that  the  conduct  yjT  the  priaoneHl  is  perfectly  justifiable  if 
tested  by  the  pnnciples  of  common  and  ordinary  warfare 
^   ;;eupi)osing  thèse  twenty  menlto  Jiaye  b^èn  detached  frt)m  the 
Imes,  for  the  spécial  purpose  of  taking  and  plui^dering  àny  of  the 
small  towDS  on  the  Potomaç,  to  levv  contribution  by  chtainiff  ^'^ 
very  of  aU  the  funds  in  the  possession  of  Jie  banjrg,  nrja  rst 


v 


bjr  plmidf^nn^Ssr-BimiîngTtTl^  hadlSr 

ceeded  m  doing  80.    What  objectipi^  —  '^  "^         ,   .^  «^  .  . 


i(^  could  be  made  ?  no  miquity, 


^ 


r  i . 


*.   ..  s  'àl/â 


263 
^e  fro.  the  main  ^oéT^SZ^I^^^âTit^r: 

Cana^an  frontier,  to  St.  Albans;  let  them  £  b^  enoueh  t^ 
attjmpt  such  a  project  there  mth  twentj  men  and  L?y  it  ouï^ 

once  m  t^  supposed  occurrenèes  Ind  the  orcomplltd^P  ' 
mat  consfatutes  the  criminality  which  would  bo  alter  S  IrveH 
mZrJ™^'\'°^:  a  laudable  act  intol  mo#  atS  and 
revoltmg  cnme?    Is  it  because  it  was  so  farfrom  the  focus  of 
^ewar.     Does  any  rule  exist  in  war  whereby  cTrtSa  Soi^ 

hewd  of  modem  usages  of  war,  but  H^l  certainly  the  most 
récent  enactment;  and  probably  the  learned  Cguiscl  Sr  the  eddU 

ffsuch  a  rule  exists,  the  moralityof  a  deed  would  denend  iin«n 
>  rts^éographcal  situation.    If  a  Aing  is  done  on  thXppZ.     ^ 
nock,  it  is  nght  and  legitimate;  but  sa  you  g»  HorthwardTthe 
moralïfy  may  decreaà^;  it  altogether  chapes  ^aîid  is  Xr2d  so 

tben  ,t  u  converted  mto  an  absolute  crime.  It  muât  be  admitted 
.that  the  Ignorance  of  thia  rule  of  war  mi^ht  be  myoked"at1eMt.1« 
aijo^i  excuse  to  the  parties  mfringing  itto  frtfnlse  ves^^^ 
«1  cnmmal  mtention  m  the  mattçr.  "«eives  irom 

thattWHW**^'l*i*'  **»«?r'»*^  »««t«l  territorW.  Admitting 
îeîLj^Sdî®  Mture,  the  chanwter  of  the  deed?    It  "may  be  a 


■^ 


:  F 


m 


p 


w^ 


2$^ 

civil  war,  wiU  the  fact  of  committing  a  trespaaa  on  nentrol  etwuià 
olwmgo  their  mtent,  deprive  them  of  their  character  of  aoldiei»  or 
partizans  and  transform  them  into  fpommon  criminals  ?    It  would  bo 
a  new  pnnciple  of  modem  warfare  that  a  trespaas  on  neatral  terri- 
tôry  would  convert  an  act  of  war  into  a  crime.    The  judge  i»  m\ 
^led  upon  to  décide  a  breach  of  the  neutraUty  UwsTbut  npoû 
the^nmmality,  the  criminal  inteût  of  the  prisonera.    He  is  caHed 
to  sabsfy  bmself  that  an  oflfence  against  the  municipal  laws  of 
the  Umted  States  has  been  perpetrated  by  them.    If  they  had 
violated  the  temtory  of  Great  Britain,  they  were  amenable  to  the 
tnbunals  of  the  country,  and  responsiblejo  them  alone,  and  not  to 
the  Umted  btates.    We  can,  however^  dispute  «he  violation  of  the 
neutrahty.     Two  facts  only  hâve  beèn  estabUshed  from  which 
any  such  presumption  might  anse,— Young'»  interview  with  Jr. 
Olay  at  St.  Cathennes,  and  the  travelling  of  five  of  the  soldier» 
engaged  m  this  busmess  through  Canada.    Besides  this,  there  is 
iMthmg  m  the  évidence  to  constitute  a  violation  of  the  neutraUty. 
How  wUl  the  transmissiori  of  orders  by  a  Government  agent  to  ono 
«t  the  o^eera  of  that  Government,  supposing  it  were  to  direct  his 
raovements  m  a  hostile  expédition,  of  itself  constitute  a  violation  of  ' 
neutrahty?     If  such  a  principlé  was   affii^d,  then  England 
could  not  act  through  her  ambassadors  or  her^avy  officers,  when 
in  neutralground  or  neutral  ports,  to  convey  oMers  or  instruction» 
,  to  those  directly  engaged  in  hostihties.    The  correspondence,  the 
transmission  of  orders,  would  be  declared  a- breach  of  néntraUty. 
ihe  quiet  passage  of  unarmed  soldiers  never  did,  according  to  the 
laws  of  nations,  constitute,  even  with  the  intent  and  object  to  reach 
the  enemy  s  temtory,  a  violation  of  n^utrality.     On  the  contrary» 
the  peaceful  transit  of  .troops  is  recognized  by  the  law  of  natioii; 
and  both  belligeren%_can  exercise  it.     In  this  war  the  «United 
States^  hâve  exerciseA  such  right  in  Canada.    It  is  proved.^ 
the  other  hand,  that  thè  whole  plan  was  arranged  m  hostile  terri- 
toiy.    The  enhstment  and  the  préparation  of  the  scheme  was  set- 
tied  upon  m  Chica^.    The  act,  however,  as  to  its  crimbality  witii 
respect  to  the  «ubiect-matter  of  the  treatjr,  must  necessarUy  be 
exammed,  mdppendent  of  any  foreign  or  coUateral  circumstanoes» 
and,  considered  in  this  light,  no  criminality  whatever  can  attaeh  to 
•  TV     "  ®«entially  a  hostile  ftct,  an  act  of  war.        ^     * 
Burlamaqui  defines  war  to  be  the  state  of  tiiosé  who  try  to  deter- 
mme  their  diferencesby  the  ways  df  force.    Wheaten,  p.  5«6^ 
Ihe  nghts  of  war  m  respect  to  the  enemy  are  to  be  measured  br 
the  objeots  of  the  war.    ètrict|y  «peaking,  it  is  the  right  of  mÂ 
.  eywy  aiMns  neoesaaiy  to^accoinplish  the  end."    2  Klaber.  pTlS 


tbttt  of  Mfth  of'flio  bolligcrwls)  euvci^  lu  partte  âw  figrW 


) 


l  % 


■A   4     'I 


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k   %■< 


■-.»!»;:■ 


m 


265       . 

guerre  injuste  sont  illimités.    Il  n'v  à  dono  ai,/..,»  «.„  i 

yiplent  qu'a  soit  que  l'ennemi  n^puil  ^«10^''  CL^Î^^^^^ 
M  aud  4,  gpes  even  further,  and'  lajl  ZZ'Z  Jl^'^Zt 

^ect  ^mit  hat  s.f^\!:'^è^(Jt:^ 
nght.  Civilization  and  the  well-understood  interests  of  ÏÏ  com^ 
^'wiiT^P'''""^."^  modération  in  the  exercbe  of  thS  rfX 
and  established  exceptions  to  this  absolute  principle  of  thi  laf  of  . 
W,  by  sanctionmg  certain  rules  which  hâve  generauXn  adonted 
bycommon  consent  and  çommon  practice,  wifhout  lrt«ver  Saf 
Zl^n  P.r'*  •''  *"2  '  ■•^.*^  "S^*'  ^^^h  stiU  remaiS  the  emSt 

CTstj^lc^^S'^  f'^-  ^'*?r*'^^  ta,wlûci  theVÏenco  of  , 
^^^L'^^V^^K  ^^^  «"^®  *lïe  war   s  a  content  bv  force 
befc^een  parties  who  acknowledge  no  common  su^rior!  and  S 
it  mclu^  not  in  its  idea  the  supposition  Tan^r  Sntbn  wS 

tta^b:tta?  iÎTwî^T"^"^  ''  forcel  PnlTalt  o 

Zr^r//'^  ^^«-  rciplelsirelLri^^^ 
ger  aiMl  divme  whom  IhaVe  just quoted/ War  is  liceSmurdr 
^e,  plunder   devasfaîtion/aad^  destructioî?^     HuZitTÏy' 
^r,  phibsouhy  J^r  revolt,  apd  seek  to  soften  ^nàVlJZ 

^  fW  /^'  P7»Ç'PÏ«  Of  unmitigated  and  unrestrainedC 
S'h.  -T^riJîr  -'''^r^  ^«''  «^««P*  thoee»  implanted  in  tht 
WtBoftiiebeUigai^febjtheCmaU    Ail  the  amelioi^iW 
^T^'^JT''^^  '^"^^^  ^^  BtySd  rules  and^s  ofW 
2r°^"'/K  ^I  ***'  ^^^  of  ii*  and  humanTSc^  S 

S^.       r^  J^^'T^  "»ates  exemption  of  ptUrt^ivm^t^^ 

Z^^^^^K''^^'^'-^'^''  meohanioal  agents  oîa  superior 
ÎSTffiï;  !^''*-fe"'  reaponsible  for  thd?  abtions.  Ivery 
ZJZJ^^1.^'^'^'*^!^7  thèm  mttit  be  considered  «s  an  actS 
ii     BniOHS  aimprovod  trf^imd^  coudannetf  liv:fli«  n5îîi»n  ï^»i.;^~ 


»«yl>ek)iig.   14e  parties  tothiiappKc|^onhlfveftckno|rledg^e 


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»  266 

•      pwfKmers  aa  their  eûemies,  and  as  eoldiei-s  acting  on  behalf  of  the 
Confedemte  States.     The  parties  in  thiô  case  themselves  kve 
quaLfied  this  very  aot  of  th&  prisoners  as  an  act  of  war.    The 
,    bwaks  did  »o  hy  a  public  notice  gîven  to  tiie  vorld,  and  whicb  is 
proVed  in  this  case,  offering  a  reward  of  $10,000  for  the  appre- 
he^ston  of  the  armed  raiders  who  had  plundered   theia  insti- 
tutions, "  an  armed  band  of  raiderê."     Mr.  Bishop,  the  wit- 
ness  for  the  prosecution,  and  one  of  the  parties  who  published 
this  notice,  says,  «  1  hav©  sèen  the*»  tenu  i^  used  pretty  often 
dunng  the  war.     I  «nderstand  tliat  raîding  means  the  ma»ch  of 
an  army  mto  the  eneray's  country;  by  army,  I  ,mean  a  large 
,    or  a  smail  numberj pf  soldiez."'  So  Mr.  Bishop a&s  that  the 
.    prtàoneràw«re  Cbr^^erateBoldiër8,and  that  fchéf  came  aa  suoh 
,  ;  mo  ht.  Albahs.     Xhe.  delnifeion  of  the  wor4  «  raid,"  given  by  Mr 
-;  Bishop,  co^espoi^ds  with.  that  «^  aU  the.'Americaa  dictioimries! 
.Itaid  is  defined,  a  hostàle  incureiôn.    Ttt  Général  Bix's  proclama- 
,    tion,  which  is  also  prcrdiî4i(il,  in  évidence,  the  prisoners  are  therein 
atyled  rebgl  maraut^er$}     The  ï^emdent  of  the  United  States 
revoked  the  latter  portîoh  0nly  of  General  Dix's  order,  whereby 
|he  latterinvited  every  America^  comBiandlër  on  the  frontier  to 
oross  thè  boundariea,  and  leaves  the  first  portion  subsisting,  whioh 
çontained  the  distinct  admission  that  th©  prisoners  Were  rebel  ma- 
rauders.  ,  This  was  a  poâtîve  admission  by  both  the  militarv  and 
executive  attthoritîes  of  thè  tnîted  States,  that  the  parties  engaged 
m  thw  act  were  mililary  m'en,  that  they  were  rebeb,  a&d  that  their 
object  WM  a  pohtico-mifitary  one  ;  which  was  in  direct  opposition  to 
the  detaandnowmade  for  extradition.    So,  the  paHiee  injured,  the 
.  mibfjuy  authontîas  and  the  executive  of  t^  United  States,  hâve  ad- 
tmtted  that  the  aoCused  w«re  rebel  soldiers,  and  tèat  they  coinmitted 
the  outrage  as  such.    Thè  beat  proof  <jf  A©  poUtico^nulitary  nature 
and  charactor  of  the^eed  of  thè  prisoners  ia  the  very  isstw  raised 
:  >n  «Hm  case.    Atev^iy  st»p,  lit  èvery  stage;  your.Honor  is  called 
upon  to  applya  pnnciple  of  international  lèw.    It  is  the  only  mea- 
•  sure  bywhifeh  the  &ct8  can  be  teited.    The  prisonere  assert  theb- 
immuni^  as  soldiers  ;  they  rely  for  their  justification  on  the  law  of 
war,  and  contend'thj^l.  their  act  is  parfc  of  the  hoetilities  of  tiieir 
coTOtry  àgaînst  their  énemils.     Tï^  applioant»  on  their  side  will, 
nodoubt,  contend  that  the  priBoue»  violated  the  ruies  of  war  reau- 
latmg  the  mode  of  carr;5ring  on  hostiUties.    So,  it  becomes  entâiày 
a  mM»tioû  of  transgression  of  the  usages  of  war,  èvèn  m  the  opinion 
pf  the  applioanta  themselves.    The  laws  of  war  are  part  of  the 
inteçwtidnal  laws  ;  every  question  of  international  law  on  this  sub- 
jeot  u  pohÉïcal.    To  ascertain  the  criminality,  to  be  aatisfied  of  it. 
™»  joage  mnst  fort  décide  thât  a  violation  of  ih'^ffg  Jam  Jm-  »^ 
«ommirteaj-he  igust  ât  on>lgnient  u^^  nations,  condenm.  flie 


'± 


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\ëmL  ■  ■i-A,,:-^-SiAA>^ij»L-c..j-.^.ùiiàu 


,  and  whose  agaùts  they  ware 


one  to  whom  those  soïdiers  belongei,  ana  whose  a^At,>*  tha^ 

and  after  pronouncinc  the  meeBiftJnfiL^^^A^-      .^  ^®^' 

expediency  require      If  mflVîfinW;  !«        '  ^eçessity  or  even 

tfarrifflif  i    'VhJ     ■      J"^*  °*^^le  lïi  any  caae,  who  shaU  judge  of 

s  cénsur.     «^TkP^'^    '^  ''  ^"^  °^"'*  be.  considerXfreffrom 
obtauT satisfaction,  let  them  retali^tn     Tjl*fi\u     ù      X^^.^"^^ 

ïS't'wtff'f  ""  °»  *»  Art  o?t  Lftl  tl'wïï 

pomt  on  which  it  was  unnecessarv io. Hw«ii     mZlJI^.J'^l^ 


•^mi'^, 


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Independently  of  the  reasons  given  to  refusé  extradition  on  th*. 

fiwt  that  this  expédition  vas  directlj  ordered  By  the  Confederate 
bïî^done.  «««*!«*«  J««*ification  for  what^ver  the  prison^ 

It  is  proved  that  the  Jeader  of  the  partv,  Bennett  H.  Jouns  wa» 
r^rly  appomted  for  spécial  service.  His  instruc^  wf^ T 
coBect  twenty  men  C«ifederate  soldiers  vho  were  Tenb  théine 

tiZ\trr^  *"  ''^J'  '^^'■P'^y  ^ov  orders.  By  these^tî^- 
taoM,  the  Government  to  whom  he  owed  civil  and  milltary  obedien^ 
declared  to  Young  that  Mr.  Clay  was  to-all  intentsl^d  pSZ^ 
their  représentative,  that  Mr.  Clay  was  their  agent,  and  tbiHE 
nty  was  j«st  the  s.me  as  if  the  orders  had  corne  from  the  pJe^S^ 
hunself  accompaaymg  the  instructions  appointing  Mr.  Cla^Orv 
l^^^W  ^oung^ould^ot  disputeT  even^  questbn^ClaVs 
auHiority.  His  supenors  onjolned  him  to  comply  absolutely  jmd 
Uhoondttioiïdly  with  his  directions.'    He  was  i^nt^S  3  Mi^^ 

tï^ohW.  *^/i-'*'''  '^'^  '^  '^'  Government,  and  so  f^vL 
the  object  of  this  mission  was  concemed  and  ail  its  détails?  was 

hST^-    1  ?^fî  T  ^  ^"^y  ^i'hin^these  instructions  "as  if 
w^  ^°o.r'"1*^  V^'  commission  itsel|^.    It  matters  not  whafc 
f^eiit^  ItT^  authonty  of  Mr.Clay  WÎth  respect  to  the  Con- 
»rZ?  w     k'  r  '"  r^*^'  P^?'*'°°  ^^^*««d  towards;  them  k 
Y^^^a    •    ."^''l'''^  ^  appointment  or  office.     In  relation  t^ 
Ye«ng  s  misswn  his  authority  from  the  Government  was  unlimited 
^ÎZTT  ^'ÎL*^'  ^î"^""  ^?  the  documents  adresspd  to  Y^ûne' 
W«    to  direc  abaolutely,  and  y>ung  and  his  party  had  to  obêf 
Were  the  prisoners  to  take  upon  themselvS  to  criticise  Ae 
ôrdew  and  instructions  of  their  Govefqment  ?    Could  thevaï  SiZ\ 
a^^mse  the  documents,  investi^teThe  nature  and  dut^^ffvr^ 
^^r:^J^t^I^'^^''}^'y  ^«"tbeyond  the  ordinar^  S  for 
acbon  fixed  by  th^  ruTes  of  intemationalVw?    If  they  Syed  theî 
ifZ'F^  '%^  amenable  as  common  criminals  tJ  JheTribmïï 
f  aie  Fédéral  Government,  there  to  be  tried  as  common  WgW 
few  ^i'^f,'^i;>  the  Confederato  Govemînent  aad  L  sfS 
itthey  refused  t»  obey  ordere  they  are  to  be  tried  and  sh^tTS  it 
w  «ow  contended  by  the  applicants,  that  for  having  obeved  thev 

vewd  to  their  edemies  *  b«  toed  hs  common  criminals. 
.  The  pnsoners  fuIfiUêd  their  misàion,  thèv  executed  the  a«î««. 

Ced^wr-  ,,^«TP--^«<l^«-Chica^wS'^ei^^^^^^^ 
SnLv     T.**'  ^^  wasmade  to  assaU  the  northem  fWeTîf 
^rr-  ,1^*  ^'^^^^f"^^*^^J^ereLSt.  Alhans^ 


«HMUd^^  ifar  spôf  to-bêlTrst  operated  upon.     Young.  wen^to 

V  '      .  il 


■J> 


_> 


269 
were  and  had  been  livine  and  nIoHm ,»  în  *ï.1      '^^n^ry.    i  he  othera 

took  irom  ^he  cWizens,  and  effected  their  eacane  with  thA  r  k!uS 
from  amongst  tbe  population  who  rushed  to  SLd  Ï.1«h  5.^ 

nght.    He  acLoLdged  nTolTsup^Sor^h^î:  cT^  T  - 

S.  nf^H         j"?  **."  ™"«ï«»r  and  robber. .  Frwn^e  verr 
ongin.of  ihf  expédition  it  was  a  nafcioiiai  hnt  «„  r^ET-V?? 


ongin  of  ihf  expédition  it  was  a  na 
yj'    _-_    P»^^g»  e«eoutinx  it      "" 
a^.ftujr  namier  aoDinimititë,  ;(^xo 
aoldiers,  were  mere  mechftnical 


<> 


hot  an'mdividujal  âot, 

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S?,*fr  •    ,^r^  ^«^.^«^  obédience;  and  for  fulfilbg 
authonti^i  19  a  it^mary  and  eaeentîal  obUgatiei»;  of  aU  mvE 

dojibted.    Thig  crueafaon  never  was  îûOre  jU)ly  tmted  and Ixsosed 

ment  rendemi  by  Judge  Covran  k  the  celebr^tenS^  McS" 
JudgeGowaaand  the  authoritifes  of  the  State  of  New  Y^A^* 
tended  there,  that  aj»  iUegal  act  of  wa*  could  i«>t  be^^ctioled  by 

the  municipal  tnbunate  of  the  offerided  nation,    /fliis  Zl  proSblv 

theu^pretensions  at  tbi»  moment.    No  better,  more  clear  andCoa 
réfutation  was  ever  made  pf  this  fallacy  than  by  this  eminent  a£ 

tlniMfcfitates,  and  conarmed  by  DanielWebster,  tbe  grçatest  states- 
Bor,  a^d  lawyer  this  continent  has  ever  produced.    Any  of 
aent»  after  those  giyen  by  such  hien  would  be  useless 
^!iî'rp     "'  ^'^'"/ïr'^f  Talmadg^'s  reviewto  be  found 
Tr«.mî  i?oP-.'  i  ""^^  Wébster'8  speechj  ih  support  of  the 

TreaTf  at  page  122  of  the  5th  vol.  of  bis  works.S         ^ 

1,^,        "^^"^  "P**''  *^®  Caroline,  says  Judge  Talmadee    waa 
hofltde  and  unlawful  and  the  British  mit  be  held  res^Sefor 

t  «.Hnt    "f*'!'^^*'^"! '*"^  °^  ^*^'  t,ut  those  en^ged  in  iï 
or  actmg  under  lawful  authority  can  nevér  be  regarded  as  robbèi 
or  plund^rers,  or  liable  to  be  pùnished  criminally  " 
«iffT/?u" '1-^-î  *î  **^«  «ara^-st  request  of  the  British  Gbvere- 
SL  on  Sh«lf  î'î-n '"^^  "'*  ^'  '^^Vons^^-  for  an  act  corn-    - 
Zt    notSLnH-^''  Ooyernment  when  admitted  and  sanctioned 
ùj  it,  notwithstandmg  the  American  authorities  declared  that 
the  act  m  question  was  illégal,  a  violation  of  their  soVeroSy  fo 
which  England  should  be  brought  to  account.         ^""^^'^^^y^  ^"^^ 

««v«Ï!lT-*''"°?P^-®''^  sanctioned  by  the  Courts  of  England  by 
seyeral  positive  décisions.     I  refer  to  a  case  in  the  Privy  Counc^ 

^aba,  13  Moores'  Rep.,  p.  22.     The  question  there  arose  isU> 
^mre  made  by  an  agent  of  the  East  India  Company,  ofproJ^rtV 

t  Sutio„\f?h'"P""!f-    ^^  .^«"^  ^  InWhadŒeJ 
tue  restitution  of  the  property  ^s  having  beerf  iUegally  made     The 

^^caye^rethePriyyC^^^ 

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"ib' 


■  -      ■  ■  271 

JBpr  m  tmjiMt,  politic  or  unnolilio  CS       =  ■  °'^  """^  '"«'> 

.      to  »T  that  even  if  a  wtodï  ha.  b5i>  E  ÎSÊ  "  »»«o»nt 

Md  that  au  aot  doue  hv  an  a^Ti  ^«T  î^^^'      ^^  <'<'»'* 

a^i  of  a.a4"'«,*:  St  up'*iiL":rrr„eraf^- 

SZm°f*!ï*?'^*8«  «'«>'*««:  noneoftCrinSï 


otor  h^j  thatt  rebels;  *h«n  J.&«od  Davis  is  «onaideL  aa  a 
rebel,  a  pnrate  indindual  ^hoee  coirôiaaioM  are  entitiUed  to  „ô 


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272 

-conaideration,  makin^  every  aot  of  war  on  \^à  robbery,  and  everv  ' 
aot  of  war  on  sea  jMracj.  Hâve  we  not  tlw  déclaration  of  the  indi- 
^arj  of  the  Umted  Stetes  <m  thia  point  fully  expreased  by  jidi» 
Nelson  m  his  charge  m  the  oaae  of  the  Savannah,  befofe  wh^ 
coMmwsioned  Confeéerate  officers  and  sailors  were  iadicted  tm 
pirates.  They  pleaded  their  commission,  their  belligerent  character 
the  authonty  of  Jefferson  Davis.     What  did  the  Judge  say  ? 

"la  a  State  of  war  (say»  Jjudge  I^elson  preâding  at  the  trial'^ 
between  two  nataons,  the  commission  to  privaté  armed  vegsels  from 
either  of  the  belligerents  affords  a  defenoe  according  to  the  Uws  of 
nations  m  tiie  Court  of  the  enemy  against  a  charge  of  robberv,  or 
K^L?hori^^'•''  "^  ^^"^  '^'^  "!8ht  be  gulty  in  the  alS'uce 
"This  branch  of  the  deffence  iûvolves  considération  that  does 
not  belong  to  the  Omet»  of  thùi  coontry.  UntU  the  departments 
,       of  stete  hâve  recognlsed  the  enstenoe  of  the  new  goveriment  the 

.V-    '  °^  ^^^tu^^^""  ''*^^'-    ^"^^  *^«  recognitfon  of  the  new 

'^  -    goyernment,  the  Courte  «ire  obliged  to  regard  the  ancient  state 
:  of  thmgs  as  unchanged." 

TT  ^^hÎT  *^®  n\^^  ^^'f  **^  *^®  worthiest  Jîidges  in  the 
Umted  States.    And  this  Judge  charged  «h»  jury  to  conviet 
thèse  men  of  piracy.     HappUv  for  the  priaopers,  iome  of   the 
jurors  would  not  asseut  to   tlbis  doctrine;   the  jury  could  not 
agrée.    But  such  »  the  law  in  the  United  States:    In  this  s»me 
manner  would  the  commission,  the  instructions,  or  the  bellieerent 
condition  of  the  pnsoners  be  received  by  the  Judge  in  the  Stete  of 
Vennont  l)efore  a  jury  caUed  to  try  the  prisoners.    What  justice 
can  they  expeot  when  the  right  of  defence  is  ab&olutely  deniedî 
To  dehver  them  would  be  to  doom  them  to  an  ignominioui  and  cer- 
tam  death.    To  extradite  them  on  this  ground  that  they  shaU  hâve 
a  fjur  tnal,  that  the  responsibdity  would  be  with  the  United  Stotes 
w  as  good,  as  Sound  -an  excuse  as  that  of  the  Inquisitors  who,  bemg 

!r  *îl,*®"/*°?u'^°^  "*.°*'®'**  ^<'*""  *o  death,  say  we  ^e  not 
responsible  «w  their  death,  we  only  deliver  them  to  the  secular 
poww,  we  extradite  them  ;  but  he  alone  is  respomiible  for  their 
death.  It  would  be  as  good  i^  reaaon  a»  that  oifered  by  an  indivi- 
dual  on^  charge  of  moider  for  having  throw.  a  man  ovir  a  bridire 
and  wh«  would  olfer  m  his  justification  that  he  was  not  guilty  bih 
cwse  the  man  drowned  himself,  and  tliat  he  could  be  ma(£  resnoiK 
fflble  only  for  depnvng  him  of  the  use  of  the  bridge  ^% 

X?      .  ^  **^  ^.  »/«o«dM>t  ;  aUow  a  prima  fade  case  to  be  aU  that 
shftU  be  requiredfor  extradition,  and  you  must  extradite  every  dan-     ^ 


^^pBïtey  court  martial  ofhi»  enemies,  that  he  was 


::^ti^M^r^%f^.i^iLl^^É^^.  ^È^^tÉ^&k^^' 


i-iin  "•  tJ  -  * 


273  '    \' 

pie»  a  sentence  of  ^nV^  court  n!!^-'?'^  ^^'  *^^«''  *«  t^is 
plead  with  the  same  Buccessï  Be^  n  .îî^''^-  ^^1  ^"^  ^^«'^  *<> 
in  the  dame  deed  as  Burley  who  tl'  ..î  S^®.*^^  ^"«^  «oldier 
judgea  of  Upper  CanSa  anll  wi!.T  ^^'"«^ted  for  robberv  by  the 

Davb,  and  who  obtained  for  aZ^to  Z  r  ^^^^^^^^  ^J  Président 
wnich  waa  strictiy  executed  ''  ^^'^  *  '^°*«"«e  «f  death, 

oan^o^Sllf^h^n^^^^^^  ^--<i  thefr  extradition, 

One  of  the  great  enda  o?  ?k!  •  ^.-^5'"'®  vengeance, 
emihent  Englfeh    uT^re  1 1  '"^'^'^^^r^  «^  civil  s^ciety,  says  an 

cases  where|l;t:'  l^erd'a"  dTrt'^t  »4s  b 
adverse  interest  to  those  who  rln  îo„  •  f®*"'*  *^®  décision  of 
nation  of  such  cases  ''  in  thî«??«i^  ""^  •°*®"®«*  ^  <^e  determi- 
of  thèse  men,  noTto  the  ju5^Tn^of'ir^''^-''l^^"^«^  *^«  «^«« 

rVF*^^^^^^^^^^^  --nt  has  ever 

violation  of  our^i^^fr  thl  ^b^^^^^^^  «hould  be  punishfd  for  the 
em  refugees  ;  but  none  hâve  JZ//  fao«P>tality  by  the  South- 
that  they%e;e  entSK  to  ob^lhe  eX^''?"  '  'W^^POsition, 
Our  Government  has  romS  fn  ^^^^^.^'^'Oï^  of  the  prisoners  , 
Passing  of  the7^>iir£^r^,^;th  their  demand  by  SL^% 

rofficielit  satisfact  on     If 'thtll  7*  *^f*  •'*  ^"  ^«  considère*" 
protection  they.  reZ^e  let  them  1^'/?  ^J^  ^'^^  ^«'«»»bors  the 
P«rt,-they/il  hR     If  Z  21^?  ^'^Jher  legishtion  on  our 
jo  them,4t  it  be  ^h^M  ^  SS  '^J:^^^' ^^^^^ ^^ ^^^^ 
remams  unimpaired—ao  lonir  «-  ^T    i  ^*ï"f  *  '  o»*  so  long  as   t 

^^ 'soient  £Hj^oVhl^ZT}''^r..  ^*1"°*  ^^^'«l'^d 
^11  protect  the  refueerin  thf  !nf  ^    and  shall  uphold  it.    They 

inatitutions  guaS 'to  ht    TC*  "^  *?,5  «'•«^*«''  ^l^'«»^  «"^ 
Peaiency,toV^emVoTerrI%72«^  «x- 

Jmes  better,— more  honorable^  ™P^^^  ^*'^-  ^  thousand 
I?t  the  World  know  tff  SL?  ^^'^^^^'^  J^?«*'-it  ^o^  be  to 
right  only  when  it  shaS  „ft  ï  '«^«««^  «hall  be  entitled  to  this 
better  anî  mo.:  huml  to  ^v^Cw  "^Z  '.?T^  *^«« 
ïativfi  ftn/i  :— «-•    ..  "<™*>t?«  or  quesboned  m  Endan^.  i.  iJ^^ 


^.» 


('• 


'    I  . 


h'    '■  ■  f 


M 


t  ' 


274 

be  no  more  so,  at  least,  do.not  iise  ît  as  a  false  light  to  wreck  them 
Our  courts  cannot  be  influenced  by any  thmg  butright S  fuS- 
they  caimot  be  made  subservient  to  power  or  authoritj.    Wo  havê 
not  ye  i^ached  that  state  of  degradVtion.    We  hâve  had  unfortu 
wïlV  ^  '""f  too  8t,^ngeviSence  of  direct  interfemfce  by  ou 
local  Govemmentv    We  hâve  seen  one  Judge  suspended,  beSe 
he  discharged  thepnsoners.    Happily,  however,  we  hâve  a  Se 
who  is  independent  of  power,  and  in  whose  hakds  every  man  fn 
tlM  commumty  would  sooner  intrust  a  question  of  life  and  d?ath 
with  ail  the  influence  of  Government  and  popular  clamor  aS 
h.m,  than  in  the  hands  of  anv  jury  ;  and  IleL  the  S,«e  Tthe 
pnsoners  with  mibomided  con^dence  in  the  hands- ofyoSHonoî 

'  March,  21st,  1865. 

Mr.  Devlm,  on  behalf  of  the  United  States,  said  : 

ij^/r'"'  ^  ^^^t'"''/*'"^*'  "^  g^**»fyîng  to  you,  aa  it  certainly  fg  to 

the  Ooimsel  who  hère  represent  t&e  Govemments  of  Cana/a  Id 

he  Umted  States,  to  find  that  the  time  and  attention  bestowed  uSn 

thia  Investigation  hâve  at  last  triumphed  over  the  nume^us  ÏÏ 

Z""^.  flS*^^''  ""^^""è  ^  '^  termination,  and  broughrus  t« 
that  stage  of  the  enquiry  which  enables  us  to  ^dress  yofr  Cior 
upon  the  ments  of  the  application  for  the  extradition  of  the  Z- 

alljough  it  haa  atWd  to.an  unusual  magnitude,  i^Sricted 
publie  attention  perhapsto  f^  greater  degfee'than  aiiV|B|Te^r 
before  made  ^nder  the  Trea^,  I  hâve  certainly  so '^■Tunablè 
k^discpver  that  it  présents  any  feat»re  calculated  to  embW^ The 
Court  m  deahng  with  it,  or  that  even  tends  to  withdhiw  itS  the 
category  of  cnmes  enumerated  in  the  Treaty  undW  which  we  are 
now  proceedmg  True  jt  is  that  the  prisoner's  Counsel  hâve  kboreJ 
hard  to  surround  ttie  «et  of  their  clientàVith  grave  iSaS 
difficult.es,  and  to  impress  upon  it  the  character  of  an  Sf  X 
„li  ^**^^Wlf'  *l»«t  ««bmitted  as  it  will  be  to  the  test  of  sound 
sensé  and  judicial  scrutmy,  the  crime  of  robbery,  of  whidi  the  nÏÏ 

rr  T  wT'^V^'"^  "'"!  "PP^^'-'  d^spite  an  the  fïse  coS 
under  which  ,t  has  been  so  ingeniously  presented  to  yoiir  Hon™1 
judgment     And  hère  I  may  rémart,  tha^  to  me  it  do^^eemTif 
my  leamed  fnen(k  fancied  themsèlves  endowéfi  ^-ith  sLe  e^trïor 
dmary  magical  influence  ;  for  certainly  without  their  sTi^sed  ^s 
se^ion  of  flome  such  rare  and  wondeiworkin'é  power,  KouldTo 
difficult  mdeed  to  believe  that  they  would  have^Smpted  to  ekvate 
a  danng  W5t  of  robberv  to  the  dignity  of  a  manly  deed  of  waS 
or  claimed  for  ite  gmlty  prpetratore  the  consi/eration  duItoS 


kKJj&/ 


:* 


275 


MMl  not  as  the  prisonera  did  at  St.  Albans  fWr  fh«  •      v, 

Ihajr^said,  yoÏÏr  Honor,  that  thTrol?     f ^T'^^  «^^'^«"s. 
mmphcty  of  the  question  bvolved  b  irEtf?-*''']'''^"^'"^  "^^ 
nary  importance,  so  much  so  indeed  IL^Ï  f  ^°®i*  *"  extraordi- 
my  leamed  ft^nds,  that  it  hU  becH  ?         '"^  ^''■*""  ««"'"«  «^ 
me  ask  .hat  ^^hat  has  llT  disTng  isî  Jet  1^"  aÎk    \'  ''' 
and  given  to  it  a  woip14  wide  notorietv  "    V  „        ^*-  ^^''^^^  1^»^^. 
«ta  signal  atrocitv,  the  fraud  and  oTnn;!    k  ^"'""^^  «nhesitatingly 
achieved,  ^ided/no  doub?,¥yThe  eZL^-  ^  Tï«  «^  which  it  wa^s' 
made  by  tl5e  friands  and  bZS^^^^^  ^^^'^  subsequently 
wicked  deed  of  its  criminal  iWsS?!  «»«  pnsonep  to  str/p  their 
'  guilty  perpetn^tors,  h.roes  if  nKS   "fie  ,1?"^^  '^  *^«'»'  '^^ 
may,  I  entertain  thehope,in  which  T  ÎtS't"  5,  *^'«'>wever,  as  it 
thatsenseless  clamer  JîirK,^^^^^^^ 
of  public  justice.     That  tour  11nnrJ^\r       -t^^P^  the  voice 

aolemntristreposedTn/rrasoneWZT^^^^  '%h  «"d 

the  làws  of  ourVountry,  wUl  not  suff.;  !^  «'^ff  «  adminiWtors  of 
fromthe  consideratio/^r  L^-S'^^^^^^  ^ 

matory  speeches  addressed  bf  the^^^^^  * 

you,  but  in  reality  to  the  prions  n^l^  ^"""^^  ostensibly  to^\ 
Uie  auditory  which  has  filU^ smE^^^  ^ym^tuls  of     \, 

,  %..   And,  now,  let  me  ask  Xt  does Th.  ^ï"*-"^"^  ^'^"^  ^^y  *'> 
require  ?    It  demands  neither  more  novÏL  fif  'T^'^  "P^"  J^" 
give  effect  to  the  provisions  o7aTreatrliZ,.    V  'u^n  ^^"  «^oiild 
soon  become  a  place  of  refuge  for  Sin  in"/  ^^'""^  ^^"^^»  ^vould       .' 
lum  for  malefactors  of  ever/dye      F™#  "^î''''^  g^^d^,  an  asy- 

was  ..ith  the  object  of  prote'^d^  tlie  subLctl  o7  H  *"  M^î^  "^^*  '^  •  ' 
the  citi^ens  of  the  United  StaL  ?r«m X  .1?^  Majesty  and 
that  mevitably  foUowed  wherô^Lat  ,. jï,^  ,''^  conséquences 
escape  the  pu'nishment  due  t^^*cSt:  T  •'  '^^'^^  *<> 
foreign  ten-itoiy  into  another  thartlf/rf '  ^  ^^^'"°  ^^'^  ^"^ 
and  the  United  States  enter^d  into  thL^^'^T''^  ^^  ^"Sland 
givesyour  Honor  jurisdTctLntotvesM^^^^^^^  ^^'^  "^'^'°"«- 
agamst  the  prisoners.  This  .treatv  «1^  u  ""^^^^^^  preferred 
a^nted  toVt  Wa^hing^n  on^l^^^^Xu^^^^^^  -« 

fied^  m  the  month  of  October  followina  t  .J^  ■?'^^!  *"^  '"^ti- 
applicable  to  this  case,  with  the  ™*nf  »k^' *^ '*" '*r'at'«»«' 
ofligatiohs  it  imposes  «i^n  us  ifl  t  tj?^'^''!  «^^^^y  th J 
ated  Statutes  of  Canadr  Can  89  n  Qiq  T^  ""  *^^  ^^^^n^olid- 
'*  Whereas,  by  the  10rarticîe"of  a  T^t'Tf  <'^'°°>«°ces  thus  : 
^à  the  Unitid  States  ofAlericI  nitiI?Arf  T"  ^^^  *^«J««^ 
HerMajesty  and  the  said  uSd  St^tT!?;  m''^*  ""^  agreed^hat 


^..  T       ^-•^-ade,deliver.upto  justice  an™;^^^^^^^^^ 


L 


"  "vmM 


^^r 


^y>, 


'    r 


»t 


I 


276 


vfith  the  crime  of.Murder,  or  Assault  with  intent  to  commit  Murder,. 
or  Piracy,  or  Araon,  or  Robbery,  or  Forgery,  or  the  utterance  of 
Forged  Paper  within  the  jurisdtction  of  either  of  the  high  coutraot- 
ing  parties,  should  seek  an  asylum,  or  be  fomid  within  the  terri- 
tories  of  the  othery    IJere  we  find  that  there  can  be  no  mistaking  • 
tlie  class  of  o^)Mer3  marked  out  for  extradition,  which,  be  it  re- 
membered,  the  same  article  of  the  Treaty  commands  shall  be  granted 
"  upon  such  évidence  of  criminality  as  according  to  the  lâws  of  the 
place  where  the  fugitive  or  person  so  charged  should  be  found, 
would  justify  lus  appréhension  and  committal  for  trial  if  the  crime 
or  offence  had  been  there  committed,  and  also  provided  that  the 
évidence  of  Criminality  should  be  heard  and  considered  by  the 
Judge  or  Magistrate  issuing  the  warrant,  when,  if  deemed  «i^cient 
to  sustfllu  the  charge,  it  became  the  duty  of  the  Justice  to  certify 
the  same  to  the  proper  executive  authonty.  in  order  that  a  warrant 
of  extradition  might  issue."     îhis,  your  Honor,  is  the  only  test  to 
which  the  guilt  of  any  pers^cm  denjanded  under  the  Treaty  can  be 
subjected  until  he  is  made  to  answer  for  his  crime  before  the 
tribunals  of  the  country  against  the  majesty  of  whose  laws  he  bas 
offended.     Who  will  say  tiliat  this  is  not  a  wise  measure  of  protec- 
tion, if  not  of  prévention,  against  the  commission  in  our  midst  of  ail 
or  any  of  the  foui  crimes  indicated  in  the  Extradition  Treaty  ?    Is 
there  a  law-abiding  citizen  in  Canada  who  wishesfor  its  abrogation? 
I  believe  there  is  not  :  and  yet,  strange  as  it  may  appear,  this  in- 
vestigation hàs  revealed.  the  startling  fact  that  there  are  at  this 
moment  very  many  among  us  who  crroneously  imagine  that  this 
national  convention,  sq,  necessary  for  the  répression  of  crime,  and 
so  neodful  for  the  protection  of  socicty,  dépendent  for  its  existence 
upon  the  good  faith  observed  in  its  exécution  by  both  the  contracta 
ing  parties,  may  upon  a  spécial  occasion  be  treated  with  indifférence, 
or,  in  order  to  secure  the  immunity  from  punishment  of  some  liighly 
favored  crimmal,  be  ignored  in  such  case  altogether. 

In  réfutation  of  this  mistaken  notion  of  ourduties  and  obligations 
under  the  Treaty,  I  will  now  read  from  the  published  opinions  of 
cminent  Jurists  and  distinguished  sfcatesmen,  a  few  extracts,  to  show 
their  appréciation  of  the  benefits  derivable  from  its  existence,  and 
the  rule  to  be  observed  whenever  its  exécution  becomes  the  subject 
of  demand  by  either  of  the  high  contractmg  parties. 

Upon  this  point  I  refer  firstly  to  a  debate  which  took  place  in  the 

«Bouse  of  Lords,  in  the  month  of  February,  1842,  when  this  Treaty 

was  the  subjectof  discussion.    Upon  that  occasion  Lord  Brougham 

said:— "  He  thought  the  interests  of  justice  required,  and  the  rights 

of  good  nèi^borhood  required,  that  in  the  countries  bordering  upon 

^tfte  another,.aarAe  Unitei  Statea  and  Canada,  and  even  that  iir-^ 


'i^ngland  and  m  the  European  countries  of  France,  HoIIand,  and 


IH  t 


277 

Belgium,  therc  ought  to  be  laws  on  bôth  sides  givin-  power  under 
due  replabons  ané^safeguards  to  each  GovernmenMoCcure  ber 
eons  who  had  committed  offences  in  tfte  territoiy  of  one  and  Xn 

nations  couW  mamtam  the  relationship  which  ought  to  exist  between 
one  cmhBed  country  and  anothor  wittout  someluch  power  ^^''" 
Lord  Campbell  for  his  own  part,  should  like  to  see  aome  gene- 
rdlaw  enaote^  and  held  binding  on  ail  states,  that  each  8ho7d 
sumnder  to  tho  demand  of  the  other  ail  persons  charged  ÏSh 
eemus  offences  except  political;  this,  however,  he  feared  w^a 
raie  orlaw  wluch  ,t  would  be  dlfficult  to  get  ail 'nations  to  c^ncur 

Upon  the  same  subiect,  Sir  Robert  Peel;  replying  to  Lord  Pal- 
merston's  speech  condemning  the  other  provisSi^  of  the  Treatv 

H.    A   ^«^*y  P«>viding  for  the  mutual  surrender  of  persons 

£e  irin  tr^'  '^^^i^  '^  ^  ^«««-«^^atwhen  the  coSries 
ftave  a  oommon  boundary,  the  escape  of  crimînals  by  stepping  over 
Jat  boundary,  ,s  prejudicial  to  the  cause  of  good  orderf  ani  ink- 
J10US  to  the  mterests  of  both  countries.  The  reciprœal  deCe3 
fc;^m«T»"^  u  '^""'^  *S  °?^'«*  "^  importance  to  civiSed 
^  67,  p  ?228    ^''''"''*'^*  P(^liammtary  Debates,  3rd  séries, 

Président  Tyler,  in  his  Message  communicating  the  Treatv  to 
Oongress,  observes  :— '  The  surrender  to  justice  of  persons,  who 
having  committed  hgh  crimes,  seek  an  asylum  in  the  territories  of 
aneighbonng  nation,  would  seem  to  be  an  act  due  to  the  cause  of 
général  justice,  and  properly  belonging  to  the  présent  state  of  civi- 
laation  and  mtercourse.    The  British  Provinces  of  North  America 

SlîînJfPî"'*^'*  *^°i  *ï^  ^^^  ^f  *^«'^"î«»  by  a  line  of  several 
tooueand  miles,  and  along  portions  of  this  line  tié  amount  of  popu- 
lation on  either  side  is  quito  considérable,  while  the  pàasa<^e  oHhfe 
boundary  ,8  alwayseasy  Offenders  against  the  law  on  the  oije  .side 
tjansfer  themselves  to  the  other;  sometimes  with  great  ditefeutfcv ^' 
th^  are  brought  to  justice,  but  very  often  they  wholîy  escattë.  A 
owiBcioumess  of  immunity  from  the  pwer  of  a  voiding  justice  in  this 
TlS.i!*^?!^*'*®  unprincipled  and  reckless  to  the  commission  of 
pS-1  '  *!î  ^  A  ^T  ""P^  «^  neighborhood  of  the  borders  are 
Mnsequently  often  disturbed."  (Message  of  Président  of  U.  S.  to 
House  of  Congress,  August,  1842.) 

1»^  Sïr'HÏLÎiïï"?l"r^-*^*^''nl?.*  î^^%'"  Im  c_eie^^ 
Mwea  speech,  dehyered,  l  beheve,  m  î«45,  in  Jefence  of  ita  "" 

provisions,  refernng  to  the  tenth  article  under  which  we  are  now 

prooeeding,  spoke^f  it  in  the  foUowing  terms:— «  I  undertake  to 


,:,     M    (j 


ï 

>.      fil 

i- 


•  \ 


278 


i^-.y     * 


I  Jw, 


li 


■î<  ■ 


iffc 


^^-i 


say  that  the  article  for  the  extradition  of  Wenders  (iontiMnod  in  thc 
Treaty  of  1842,  if  thero  was  nothing  ol8e|in  the  Treaty  of  any  im- 
portance, has  of  itself  beep  of  mûre  value  |o  this  countiy,  and  is  of 
more  value  to  the  progress  of  civilization^l  the  cause  of  humanity, 
and  the  good  understanding  between  naticttis,  than  can  bo  readily 
computed.  What  was  the  state  and  conc^tion  of  the  country  on 
the  bordera  and  fi-ontiérs,  at  the  time  of  thià  Treaty  ?  Why,  it  wa« 
the  time  when  the  "  Patriot  Societiee,"  (ir  «  Hunters'  Lodges  " 
were  in  full  opération,  when  companiés  were  formièd  and  officers 
appointed  by  secret  associations  to  carry  c||n  the  war  in  Canada  ; 
and  as  I  hâve  already  said,  the  disturbancefiTwere  so  fréquent  and 
80  threatening,  that  the  United  States  Government  despatched 
General  Scott  to  the  frontier  to  make  a  draft  on  New  York  for 
militia,  in  order  to  préserve  the  peace  of  the  border  ?  Nothing  but 
this  agreement  between  the  two  govemmentS  tiiat,  i^  those  '*  Patri- 
ots  "  and  «  Bam  bumers  "  went  from  one  side  to  the  qther  to  destroy 
their  neighbors'  property,  trying  ail  the  tiiiie  to  bring  on  a  war^ 
(for  that  was  their  object,)  they  sliould  be  didivered  up  to  be  pun<i^ 
ished.  ïhey  were  heard  of  no  more,"  W&^ater^s  m>rk8,  vol.  6. 
p.  139.)  ^  ' 

Vattel,  speakmg  of  ïreâties,  says  :  "  ïhiî  faith  of  Treaties— 
that  firm  and  sincère  resolution — that  invariable  constancy  in  ful- 
filling  our  engagements,  of  which  we  make  profession  in  a  Treaty, 
is  therefore  to  be  held  sacred  and  inviolable  between  the  nations  of 
the  earth,  whose  safety  and  repose  it  secures;  and  if  mankind  be 
not  wilfully  déficient  in  their  duty  to  themselves,  infamy  must  ever 
be  the  portion  bf  him  who  violâtes  his  faith. 

"  He  who  violâtes  his  Treaties,  violâtes  at  ,4he  same  time  the 
law  of  nations:  for  he  disregards  the  fait  a, ^f  Treaties—that 
faith  which  the  law  of  nations  déclares  sacred;  and,  so  far  as 
dépends  on  him,  he  renders  it  vam  and  ineffec  ;ual.  Doubly  guilty, 
he  does  aninjury  to  his  ally,  he  does  an  injuiy  to  ail  nations,  and 
inflicts  a  wound  on  the  great  society  of  mankiiid." 

On  the  observance  and  exécution  of  treatieZ  "  said  a  respectable 
.sovereign,"  dépends  ail  the  security  which  priinces  and  atates  hâve 
with  respect  to  each  other  ;  and  no  dependenc^could  henceforward 
be  placed  in  future  conventions,  if  the  existingjones  were  not  to  be 
•  observed.  The  man  who  violâtes  and  tramplès  under  ifoot  treaty 
engagements  is  a  pubUc  enemy,  who  saps  the  foundation  of  the 
pea^e  and  common  safety  of  nations.— (  Vattely  B.  2,  cap.  25, 
p.  229.) 

Upon  the  same  subject,  Chief  Justice  Jay,  in  his  day  a  most 
emment  jurist,  and,  if  I  mistake  not,  the  negociator  of  the  treaVy 
knowo  as^iie^*  Jay  Tfeaty,^'  in  delivering  fais  charge  totireGwmd 


Jury  in  the>celebrated  case  of  Henfield,  tricd  in  the  city  of  Kch- 


^^^i-» 


^_l.,jni-w^ 


-i^f£^îi:-,j    *\^'4 


^'-     279 

inond,  on  tho  22nd  ôf  May,  in  tho  vear  1 7q«î  fi.n  «    •  w       i- .. 
-  neutralité  laws  of  the  Uni^^d  SteJ,  IVrveâ  -  Tv^^:if  '^' 

.,  force  and  obligations  from  mutual  consent  and  agrJement    S 
consequently  ,vhen  once  fairlj  made  and  pmperly  SncSd  c^. 
:  uot  be  altered  orannuUed  by  one  of  the  parties  ^wJï.!,'       .' 
and  concurrence  of  the  oLr.     WiS:  Ke' ^ffe^lt ^0^0" 
treaties  aiid  statutes  :  we  niay  negociate  and  make  contracte  wTt 
other  nations,  but  we  can  neither  legislate  for  them  nor  th™y  for  us 
to  vacato  or  medify  treaties  at  d^cretion.     TreaS  thereforë 
necessanly  become  the  suprême  law  of  the  land.    Se  Vace  S^s' 
penty,  and  réputation  of  the  United  Status  wîn«ilîf!'PT 
dépend  on  the!;  fidelity  to  their  ^ng^etï^^aîd  tei^%CÙ^ 
citizeti  (for  evcry  citizen  is  a  party  to  them)  t^II  concSTbrrv 

K^'^r*'-.?  *H^^"*'^^«"^'-^^  Td  "hà^tVheT^^^^^^ 

they  be  made  with  nations  respectable  ma  imnorfa^t  nr  «îi™!- 

y^k  and  inçonsiderable,  our^bligatirn  rîi^ou/fÏÏ  ^^^^^^ 
froxaour  having  pledged  it,  aad  not  from  the  chmcter  or  descri^ 
tion  of  the  State  or  people  to  >vhom  neither  impunity  i^rthe  2 
of  retahation  cansanctifyperfidy  ;  foralthough^rfijymayd^^^^^^^ 
chastisement,  yet  it  can  never  ment  imitation  "  ^ 

Upon  tbs  branch  of  the  case  I  will  not  dwell  longer  as  I  belinvA 
that  your  Honor  s  as  fully  sensible  of  the  impoSe  Tî  our  exe 

bS^d^S^n  who^  -'^^^^  engagements,  ^eUen  the X 
tmguished  men  whose  opinions  upon  this  subject  I  hâve  brieflv  laid 
before  you.  But  while  it  is  our  dity  to  give  due  effect  to  thflfJal? 
when  ts  exécution  is  demanded,^  S^Lf^^l^t^teS 
made  to  become  in  our  hands  an  instrument  of  op^S^n  or  S 
justice.  I  wiU  therefore,  with  the  view  of  show&Tg  Ae  iusto^^f 
the  présent  apphcation,  addresa  myself  to  tL  consIderS  ofthe 
fac  s  ui^  which  is  founded  in  this  instance  the  dem^d  of  tbp 
Umted  States  for  the  extradition  of  the  prisone^  ;  pr^ÏÏLg  that 
hefore  we  can  ijvoke  the  opération  of  the  treaty,  we3haye 
clearly,  unmistakably,  and  in  accordance  with  thé  rules  and  r? 

.,.ZHf~^\'f^  particuUr  oflFence  which  has  caused  the  de- 
umn^  for  extradition,  was  committed  at  the  time  and^lace  ÏÏleged 

scSbt^X'*  ''  "'  ''  *''  '^'""  n^ti^ed  ^d  de- 
rei^wK^'  and  ja«</y  -That  the  persons  whose  extradition  is  by 
Sr  dtd  '^'  Participated  m  the  commission  of  the 


H  J^''.r"'*^T'''  as  I^underatMid  the  object  of  our  investiira. 
faon,  is  tïie  most  important  branch  of  our  enquiiy,  andl  Jïe^fo^ 


'     1  ■ 


i 


il. 


lû.^Éi^»j. 


ipesl: 


■  !»«- 


1^ 


ik 


J  . 


280 

the  firet  to  ment  our  attention.  Impresaed  with  thia  conviction  of 
our  duties  and  responsibilities,  I  will  now  proceed  to  diacuss  the 
évidence  we  hâve  adduced  in  support  of  thèse  three  propositions. 

What  then  are  the  facts  proved,  if  any  ?    I  answer,  that  it  b 
proved  beyond  the  possibUity  of  doubt  that  long  préviens  to  the 
19th  day  of  October  last,  the  day  when  the  crime  in  question  was 
committed,  a  plan  was  organised  in  our  Province  of  Canada,  by  a 
party  of  men  calling  themselves  Southern  Refugees,  who  at  the 
time  were  ^^njoying  the  hospitalities  of  our  citizens  and  the  pro- 
tection of  our  laws,  which  plan  had  for  its  object  the  robberv  of'^ 
our  neighbours  in  the  peaceful  town  of  St.  Albans.    It  is  proved 
that  m  pursuance  of  this  illégal  and  tr^acherous  organization,  and 
two  or  three  days  preceding  the  sfiid  19th  day  of  October,  thèse 
WHîalled  refugees,  to  the  number  of  about  twenty,  secretly  left  this 
i-rofmce,  and  stealthily  introduced  themselves  into  the  town  of  St 
Albans.     It  is  proved  that  after  their  arrivai  there,  and  so  soon  as 
thèse  evil-disposed  visitors  had  marked  out  the  persons  whom  they 
intended  should  become  the  yictiras  of  their  cowardly  and  felonioi^ 
opérations,  they  cast  aaide  the  disguise  assumed  for  the  occasion 
and  m  the  afternoon  of  the  19th  day  of  October  last,  suddenly 
emerged  from  their  hiding  places,  and  appeared  among  the  un- 
suspectmg  citizens  of  St.  Albans,  armed  with.the  deadliest  kind  of 
weapons  ;  each  man  of  the  party  threatemng  iitetant  death  to  aU  or 
any  ot  the  panic-stncken  citizens  who  darod  to  oppose  him  m  his 
work  of  plunder.  7  '^ 

It  is  proved,  that  having  been  thus  armèd,  some  of  the  garTg 
entered  the  St.  Albans  bank,  and,  having  taten  violent  posses^onT 
closed  ite  doors  ;  that  immediately  after  this- first  act  in  the  tragedv 
80  treacherously  performed,  Mr.  Samuel  Breek,  unconscious  of  tho 
danger  that  awaited  him,  knocked  for  admission,  ^d  waspermitted 
f  !u    r  ,    '®  P^^®?  *^**  nossooner  had  he  done  so,  than  the  door 
ot  the  bank  was  again  closed  ;  whereupon  he  was  violently  seized 
by  one  of  the  fobbers,  who  presented  a  revolver  close  to  hîa  head, 
threatenmg  at  the  same  moment  (I  use  the  words  of  the  witnessj 
toblow  his  brains  out  if  he  (Breck)  did  not  then  deliverto  him  a  sum 
of  money  which  he  had  brought  with  him"  to  the  bank  for  the  pur- 
pose  of  redeercing  his  promissory  note,  unfortunately  for  him,  (due 
on  that  eventful  day.    It  is  proved  that  Brecki  seeuig  that  résist- 
ance upon  his  part  would  but  lead  to  his  being  fc  dead  upon  the 
spot  yielded  to  the  threat  of  his  murderous  wsailant,  and  Sowed 
him  to  take  his  monev,  amounting  to  about  $800,  and  which,  as  I 
bave  ^ready  steted,  he  carried  with  him  to  the  bank  for  thé  pur- 
pose  of  paymg  his  note.  .  * 

It  is  proved,  that  during  the  continuance  of  this  cowardly  ooera- 
4iôa  <poIiteIy  designated  by  my  leamed  mends  an  âct  ôrw^, 


281 

wbch  to  enable  the  honest  warriors,  one  and  allTto  seek Tafetv  n 

Sê«^;nîr.l,*^'!-/'\P^""^«'  '^'^  ««*i«fi«<i.  thèse  vSknt  sol: 

not  betore  they  had  imbrued  their  hands  in  the  blood  of  fh«  u^fZ   « 
SLÏ  T^^"/  "^  ^-^»'  Xm  therSl^and  there 

It  4Tl„n  1  Kl-  i^'ir""^'^*  *^«  «"^>«t  of  investigation, 
oubli  ^Z^f"^'^'  that  80  soon  as  the  report  of  theTe  infamoua 
n!fîf\T°,?^5  *'^®*  '^^  Ubertie8,the  honor  and  proDertvof 
our  neighbors,  had  reached  the  ears  of  the  Government  rfpeopL 

of^S^^rdlS^'^tï^'^i'^'^^"^^'^^  ^^^  «  generaTouŒ 
of  KctThat  th^-"  ^  mdignation  heightenedV  a  knowledge 
01  me  tact  that  the  murderers  and  robbera  had  sought  a  dace  of 

n^fc  o'rt'nf  ^'  '"^'^  '''  '^''^'^  ^^'^  !^  '-  "^^ 

bv  a  SfTv  i.  '7-*^!-  *^'  «o^«rn°>ent  of  this  country,  aniiHated 
fc  îi  ""'^  of  justice,  and  moved,  as  well  by  a  desi^  to  mark 
their  abhorrenço  of  the  crimes  committed  at  St   AlbTns    S  to 

S^aremniS  7 'f  ""  "'''  *^^  ^^*«^  sSÎte^  oSed'th'^ 
STa^  „    employment  of  every  mejg^t  their  <iispo8al  necessarv 

«fe3:/%*^I-f^"^°#^^  ^«««H  of'^hicKa^K 
arrest  m  this  Frovmce  of  thirteen  of  the  ganc,  aU  of  whom  unfor 

ïïïtLXd  .^'^«^•^"^^«owed  to  esSJf.'  How  or Thytl 
ûTJ^wTi  "  °'*  necessary  I  should  nowstop  to  enquire,par- 
S^a^a?L"r°^  wî^  underwhich  the  prisoners  eluded 
•mtû^Zn  """"^  *^'  '"^J^°*  °^*  «P««i*^  Govemmental 

Horr**  ^w^îïtL^^*'"  subsequentiy  is  peraonally  known  to  your 

mL.^iZT^^ZT^^^  °'  '^'  priaoners^;. 

examinahV      q™  '^^^'^J*^ ,  the^  aro  the  peraons  now  under 

hSn^tïnnr  J  i^r  ^'*°?''.  ^^  "^  *"*»  tT perceive  that  we 
wal  rîbbld  ^^Hk^*  propcmtions,  namély,  thit  Samuel  Breck 
Z  o7  Ae  h^f  J  qh  ^"^  f  ^*-.  ^'''^-  ^  *^«  State  of  Vermont, 
==EèLtedÏî^Si%fi?td?*t«>d  Wiann  the  jurisdiction  of  „ 

ir^S^beti^h:^*"^^'^ '^^^^*'^-™- -^^^^^^ 


:■  ■'  ;s 


1" 


■  'ilî:: 


'•m 


\  ■Éf'ûMâhL'^j^'à^^. 


ri 


/> 


■j' 


M 


r^ 


-t-v/» 


H  i'is- 


^., 


282 


Itw,  thw^oré,  only  n^eaaary  tliat  wo  should  advaivco  ono  «ton 
nirther,  and  show  that  t<^ hâve  proved  our  third»and  last  proposi- 
tion, that  18,  that  the  crimo  was  committed  by  the  prisoi^rs.    ïad 
thw,  I  thipk  we  hâve  abundantly  establis^ed  by  our  having  idonti- 
ficd  two  of  thein,  Spurr  and  Teavia,  as  the  prisonprs  who  peïsonally 
robbcd  Bréck,  and  thtLother  prisoners  as  having  aid^drassistod 
and  concerted  with.  them  for  tliat  -purpose.     Upon  this  point  I  refer 
to  1  Wharton,  Amencan  Criminal  I^w,  page  124,  wherein  the  law 
upon  thw  subject  ,8  etated  in  thèse  ^onls  :  "  It  is  not  necessary  that 
be  part^  ôhould  b^  actually  pre8enf,''an  eye  or-fear  Aess  of  the 
transaction;  he  is  m  construction  of  law  présent,  aiding  and  abet- 
^  tmg,  if  with  the  intention  of  giving  assistance  he  be  near  e^ugh  to 
afford  it,  should  the  occasion  require.     Thus,  if  ho  be  outside  the 
house  watching  to  prevent  surpriso^r  the  like,  whUst  his  companions 
are  in  tlie  house  committtog  the  felonv,  such  constructive  pîosence 
)s  suflScient;  one  who  keeps  guard  wliile  others  act  thus,  assistbc 
them,  18  |n  the  eyos  of  the  law.  présent  and  responsible  as  if  actu- 
ally présent.    In  case  of  sterling  in  a  shop,  if  sevei^  are  acting  in' 
concert,  some  m  the  shôp  and  some  out,  and  the  property  is  stâén 
by  one  of  those  in  tbe  shop,  those  who  are  on  the  outside  are  equaUy 
gailty  as  prmcipals  m  the  oflFence  in  stealing  in  a  shop  " 

As  to  what  vdolence  is  suflScient  to  constitute  robbery,  Archbold 
m  vol.  3  p.  418  says.:  J^  The  ordinarv  mode,  fonnerly  of  présent: 
ing  a  pistol  18  sufficient,  so,  if  the  robbcr  assault  the  party  in  any 
other  way  under  such  circumstances  of  terror,  as  to  c^se  him  to 
deliver  up  lus  money  or  othçr  property,  or  if  there  be  a  struggle  for 
the  Ijropôrty  bofore  it  is  taken,  is  sufficient." 

If  further  testimony  should  be  reqùired,  it  would  only  be  noces- 
sary  to  refer  to  the  voluïitary  statements  of  the  prisonere,  in  which 
they  admit  th«ir  commission  of  tHe  crimo  charged  against  them 
but,  say:  they,  we  should  stand  excused.  Wliy  ?  lecause  wo 
mfoFm^  Breck  at  the  time  we  rçbbed  him,.that  we  did  so  in  the 
narae  of  the  Confederacy.     ïruly  a  very  qonsoUng  intimation. 

buch,  youi-  Honor,  are  the  facts;  and  such,  also,  is  the  law  upon 
which  we  rest  this  branch  of  pur  case.  The  next  considération  tTat 
présents  >taelf  is:  What  is  the  duty  of  the  Judge  under  thèse  c" 
çumstance?  Wo^^dyoor  Honor, if  tins  crime  hal  been  perpetrated 
m  thia  Province,  and  within  the  jurisdiction  of  this  CourtrbV anvof 
our  citizens,  with  such  évidence  of  its  commi&ion  as  we  hâve  laid 
before  ypu  in  support  of  the  présent  charge,  hesitate  for  a  moment 
m  committang  them  for  trial  ?  I  feel  confident  you  would  not  ;  and 
therefore  I  venture  to  say,  that  if  the  justice  which  under  siînilar 
cirçamstenoes^fre  would  mete  out  to  ourselves  is  not  denied  to  the 
^^llS*^lî  ^^  ^  hopg  Jt  will  P?t,;^QarJHonor  can^ot^gMtà 


Il       -I 


commit  the  pnsonére  now.  beTore  you;  to  await  the  further  action  of 


u  jSuLUt  ié-iàc^&i^X 


SiÏ!,ja.iCili.Ajt/iîi<;  4  j''-îi.ji.Î4£^'\ 


288 


■8,  in  which       •! 


^'^}(jverument,  u|)o.h  tho  demand  for  thoir  extradition.     In  ««m 
^  K  t5",'"®''  «f  *»»«  case,  I  will  now,  cite  a  fov  authorities 
whioh,  l'^hove,  urg  worthy  ,of  your  ïlonor's  attention 


£. 


(  THE  bUTT  OF  TlfB  JUl     _ 

Sir  Cornwall  Lc«U  puts  it  thwjloarlv  aS  cxî)licitly  :  In  ordof 

^«  f!!      I  v"^'*"™  of  «ctradition  oàctuaî,  tho  amount  of  proof.a^d 

,    thç  formalit.o8rcqumKi  should  boiàa  small  aa  is  consiflto'oUith  tho 

rtZlliltTf^^''^'''''  '''^'  y^^»"  '«'  thatCfidel" 
lm.d  1  P.  '"'■^'^  govemment  and  in  its  administration  of 

cnnunal  law  The  assurance  of  that  Gbvommont  ought  to  bo  tho 
cluef  guarantee  against^  abu»e.  If,  therefore,  it  claims  any  fugi- 
tive, throughthe  accreditcd  diplomatie  channels,  and  gvos  a  rea- 
sonable  proof  that  there  has  Un  a  proper  in;estigation  by  tïo 
officbrs  of  pohco  and  the  functionaries  conducting  the  prçlimlnarv 
steges  of  judicatare-,  and  that  this  investigation  had  ledV  the  S 

!Znii  i  •  h°  ^r^  ["î  ^'T*^"*"  '^  «^*y  «t*''«  ofifence  chargea 
agamst  him,  it  is  désirable  that  the  extraditife  should  tako  place, 
upon  pro^f  of  .dentitjr  of  the  party,  and  without  any  fui]  inveS 
tion,  such  as  a  .magistrate  vroul3  make  for  the  commitment  ofa 
pnsoner  m  this  country.    <Lewis  on  Foreign  Jurisdiction.  p  62^ 

it  ofS:*rf.f  '  '^T=  "ïï^  -cJgnitff  of  the'cLinii 
law  ofa>;eign  State,  and  the  confidence  in  its  regular  and  iust 

TfW  1  ^f '>  ^.P^^l«>«d  by  the  eatablished  practice  of  this  and 
o.ther  countnes  with  respect  to  tho  civil  law  "^ 

«lin/*^'  *^®  !^^*  thus^early  stated  has  becn  foUowed  in  prac^ico 
whenever  questions  undef  the  Treaty  arose 
th.  .«!!f  f  ûdferson  case,  Chief  Justice  Draper,  with  référence  to 
the  case  of  a  party  accused  of  murder,  seeking  to  iustify  it,  obser- 
vedr^If  there  .8  a  question  of  fact  to  be  tried,  f  appîoh^nd  ho 
must  be  surrèndered,  as  such  a  question  can  oniy  be  tried  in  tho 

îrpïgeto  )  *'"'"•     ^^'  ^'  ^-  ^'  ^•*^^-  ^  *"^  2,  Vol 

T^i'/Ï?  ^A««»^««*«  case  Ihe  samé  question  ^as  incidentallv.  dis- 
posedof.  rheCounsel  for  the  prisonera  T^as  proceeding  to  ooih- 
menton  the  évidence  of  authority  from  the  .Confederato^Sovern- 
ment  when  Mr.  justice  Rifcchie  observed  :  "  Assuming,  as  vou  - 
7l^P  *'  *^'-  '**f  '^.  y^"'  «'•g^ment,  the  correctness  of 4e 
K  nff^*^""**  tie  pn8oner8,artà  the  Magistrate's  JurisdioUon 
ot  the  offence,  do  not  thèse  question^  fall  within  the  proviicé  of  th\j 

SK^J  ?°"''*  ^'^  ^^^.^'^  ^^ *^«  P^^^'»^" ?  I«  it  °ot  the  Magis- 
^Iw^nf"^  nierelytoseeifa  preliminary  cggels  made  oâj_ 
=^kr  we  must  a^  in  this  CMô  just  as  if  it  was  an  offence  commitT  " 

ted  hère.    Tho.  question  is,  would  I  pn  the  évidence  commit  fo^ 


.nm 


^ 


V.. 


J,   I.    uî  ■A.fiSVfKïiliMf  f 


Û' 


*t 


mi 


li 


i;'.î. 

■    ,1 


>;-• 


■nTiî. 


'  284 

SïL5?tifn1'"""*^^-     ''  "'  ™"«^  ^  "«*  ^-™'*  *«  P^^-  for 
To  this  the  prisoner's  Counsel  roplied  :— In  Andenson's  caae  * 

and  80  in  U.  S  vs.  Palmer,  4  Curtis,  page  314,  Parker  ia  foÛ 

country.     (Chesapeake  case,  Report,  page  35.)  The  case  of  Metz- 
fameTî^i"  theôthvoL  New  Le^al  Observer,  niain^nfthe 

;o4dtr"s:;picb^  ''*°"^*"*^  "^"^*  "^"'™^*  -^-  '^-  -  i-t 

I  wiU  now,  said  Mr.  Deviin,  call  your  Honor's  attention  to  the 

«638  m  the  state  of  Vermont,  one  of  the  United  States  of  America 
Immediately  after  the  robbery,  he  fled  to  Canada,  hopingJiKe 
pnsoners  now  before  the  co«r(  to  find  a  safe  asylamC'   F^her 
T'^XIS  "''  P'™ï*i'  *^  JW  his  ill-gotten  booty  in  peTce 
tLll^A^  ""^  "^^?  ^'^''  ^^  extradition,  although,  be  it  re-   • 

siiijender  of  fugitives  from  justice,  in  existence.    *he  application 

Zrî  K  /^  T^  7Ï**  '?  "^"«^  *»*«  "  *'0'»it7  of  nation8,'^and  Z 
«^n.  nf  .1    '  Chief  Justice  Reid.     Tliat  emfnent  Judge,  in  tW 
onifn  •'  •'^rïw'  r^^-^This  right  of  surrender  iL  fo„nd^ 
nL^Î  P™J«PJ«' *at  he  who  has  caus'ed  an  injury,  is  bound  to  re 
pair  it,  and  he  who  bas  infringed  the  laws  of  any  country  ig  HabTe 

tïat  nuS^enr'  ï^'*'^  ^^  ^""^  ^'^'  '  ^^  -«  ««-«°  Wm  from 
tinn  -^T        '  ""^  ^®^'?'"?  P**^®'  *o  his  crime,  we  excite  retalia- 

nav  S^î^r/r/^'^ï/'  Mividuals,  it  would  be  dishonorable! 
se^f  toT.  nï  A  f  J^'  ^^  *^^  '^^^^'-^y'  ^«  ^«"^«r  "P  the  accu: 
i^t^tf^^'^  ?w  !i!  ^'-  r'^  ^"'^^  «"^  P»»-*  of  the  Liai  com- 
jmct  which  directs  that  the  nghts  of  nations  as  well  as  individuals 

them    L'E^''^'  '^  «"^  understanding  main  Jned^'tten 

ZrCCJtt''''''  -~-'*--A-^  --'  n..i/y  .«^: 

A  m^rn  writer  (Instit.  du  Droit  des  Gens,  &c.,  par  le  Gérard 

!îr  T-*  if  «tommunication  journalière  entre  deux  pais  limitroDhes 
est  inévitable,  et  efle  doit  être  d'autant  plus  favoffie  J^rC 

fZ^^^  "^"^^'^'^  qtt-elleësflïâMrliremenyToJenu^dg- 
besoms  réciproques  et  qu'elle  donne  par  h\,  lieu  à  des  change. 


■^i   ('^ 


285      ^     , 

d'ailleurs  elle  établit  eutre  les  habitant*  respectifs  des  liaisons  .t 

:  Ur  J^u^^a^^^^r  '"^  "^'"-"^  '-'  *-'*^'  «*  -S'eni 

,       Indeed,  said  the  leamed  Chief  Justice  Reid  werfi  «a  f«  f  . 

mto  account  the  opinions  of  modem  writers  on  înteLtio^  kt' 

we  would  be  still  more  stronglj  fortiBed  in  the  prindp  e  w1  hère' 

jeoted.  At  ail  events,  said  the  Judée,  we  «av  safôlv  l^fW 
at  the  présent  day  the  world  has  becL'e  enlTJte^ed  In  f^  tt 
ence  of  government  as  well  as  in  ail  the  other  departaenta  of 
human  knowledge,  far  bejond  what  waB  k^  to  thl  «ilr! 

Z?  f  î  W°*/"^  T^  ^"  considered  at  least  asweU  uS- 
tood  and  better  adapted  to  the  rights  and  feelings  of  maSd 

WTmt,  said  th.8  eminent  Judge,  we  hâve  to  détermine  L^hethei" 
there  was  légal  gronnd  for  the  arrest  and  surrender  of  tiie  nrisoner 
and  we  hold  there  was.  The  prisoner,  said  he,  cornes  befdl' 
a  very  différent  character  from  that  of  a  sub^ctTwhom  p^^^^^ 
tion  is  due  j«  a  mattor  of  right  :  he  is  an  alien,  to  whom  n^oSon 
18  not  due,  ,f  the  King  sees  fit  to  withhold  it.  '  The  obTe?vatk>n  of 

^J^'»f^nto  the&ng^s  territories,  and  my,  you  sMl  prllctZ  '' 
It  .3  held  (see  Chitty  on  Prerog.,  p.  49  ;  1  Black,  000.^259-260) 
hat  ahen  fnends  may  lawfullj  corne  into  the  coùntr.  ^iSt  anv 
hcense  or  protection  from  the  Crown;  though  it  s^ema  that  ^he 
■  ^™J°;  ^T  ^V^^'""»^'»  ^^^^  and  by  the  law  of  natîor.Zis  a 
right  to  order  them  out  of  the  countnr,  or  crèvent  tE,  fi^f^ 

«8  (see  1  Chitty,  Cnm.  law,  131  and  148,  note  Fal)  that  it  îa 
msapa^be  froin  the  goveming  power  in  an^  countty  ihat  U  haS 
be  able  to  take  précautions  againsfc  foreigiers  resfding  in  su? 
country,  and  particularly  in  a  country  whfre  foreignere  are  onli 
aaena^le  to  the  ordinary  laws.  ThJ  prisoner,  sSSTheJudl^ 
came  into  this  Province  unde^  suspicioïs  circuistanc^,  cŒ 
wi  h  felony  ;  as  an  alien  his  conduit  did  not  me^proCtE- 
unless  he  had  corne  wi A  a  fairer  chanicter-and  hè  oS  not  IJ 
be  surpnsed,  nor  to  complain  that  h2  Maiesty's  G?verSme„^ 
Bhould  direct  him  to  be  taken  baok  io  that^o^Ly  wKrhe 

Applying,  said  Mr.  Dîvlin,  this  Judgment  to  the  case  in  aues 

should  not  complam,  if  you,  one  of  H«.r  MaieBty'a  Snàam  ^IL- 


t 


tb.7  80  8hMD«tuil,  „„|,M.    Th.t  h.™g  oatraged^a.  Z.  " 


■(.., 


*^> 


1^ 


li  ■! 


286 

Jmmanlty  as  tliey,  thè  pi-isonei-s,  did  at  St.  Albans,  they  hâve  not 
the  nght  to  say,  We  will  force  ourselves  into  your  Canadian  terri- 
tory  ;  and  though  our  guilt  should  involve  you  in  war,  we  will  still 
persist  in  demanding  that  you  should  assume  ail  the  responsibilities 
of  our  cnmes,  and,  cost  what  it  may,  that  you  should  shield  us 
trom  the  penalty  due  to  our  oflFencés.     This,  said  the  leamed 
tounsel,  is  the  ridiculous  pretension  unblushingly  set  up  on  behalf 
of  (flie  prisoners,  and  boldly  urged  upon  the  attention  of  the  Court 
The  next  case  to  which  he,  Mr.  Devlin,  would  call  his  Honor's 
attention,  was  the  welf-known  case  of  Muller,  whose  extradition 
was  demanded  by  the  British  Government  upon  a  charge  of  mur- 
der.     The  application  for  his  surrender  was  investigated  in  the 
City  of  New  York,  before  Mr.  Commissioner  Newton.    In  render- 
mg  judgment,  the  leamed  Commissioner  made  the  followin»  perti- 
nent remarks,  which  will  be  found  at  pp.  28  and  30  of  the  pub- 

lished  report  of  the  prôceedings  had  in  that  case  : 

r  A^n^  «vidence  is  such  a&  ^ould  plainly  requirê  the  commitment 
of  Muller  for  trial  if  the  offence  had  been  committed  hère,  and  it 
results  that  a  certificate  leading  to  his  extradition,  that  the  case 
may  undergo  an  investigation  in  England,  should  be  granted  " 
And  01^  this  the  Commissioner,  in  the  foUowing  language,  appuèd 
the  Uw  clearly  applicable  to  that  and  every  other  case  arising  under 
the  Treaty  :  "  Having  heard  and  carefiilly  cohsidered  the  rotaarks 
made  by  the  council  for  the  defence  I  am  at  a  loss  to  see  after 
having  carefuUy  considered  the  testimony,  and  weighing  it  in  my 
mind,  that  there  is  not  sufficient  évidence  for  me,  sitting  hère  simply 
as  a  raagistrate,  and  the  duty  for  mo  being  simply  to  détermine 
not  whether  the  man  is  guilty  or  not,  but  whethei-  tliere  is  sufficient  " 
évidence  to  reqmre  that  he  may  bc  committed,  in  order  to  afford 
an  opportumty  at  the  place  whero  the  crime  was  committed   of 
proving  his  guilt  or  innocence.     It  isi  not  necessary  for  mo  to  say 
whether  I  would  absolutely  convict  the  man,  and  sentence  him  to 
be  hung,  wpre  that  even  in  my  provihce,  but  the  duty  I  hâve  to 
perform  irsimply  this  :  first,  bas  thefc  been  a  ovime  committed  ' 
If  committed,  is  there  probable  causes^  from  the  évidence  adduced 
to  say  that  the  accused  is  the  party  who  has  committed  the  crime' 
Now  it  appoars  to  my  piind  clear,  that  looking  at  it  in  that  light— 
in  the  hght  of  probable  cause,— it  is  very  plain  that  there  is  such 
cause.     I  do  not  désire  to  sit  in  judgment  on  this  man,  but  I  wish 
it  were  ni  my  power  to  discover  any  évidence  in  the  case  whereby 
1  could  withhold  the  certificate  ;  but  I  am  bound  to  say  thaMhe^ 
combmed  circumstances,  to  my  mind  appear  so  clear  and  so-dSct 
that  upon  the  question  of  probable  cause  I  cannot  hâve  M^oubt.'' 
In  the  still  more  récent  case  for  murder  on  the  iîa  aeaa^ 
^^im^^  WiBrhi^^^ltâjrmônd,^^^^^  pr^erlesiml 


"'IMà 


\  287 

a  joïy  on  a  final  hearin^  oMrialfS.  JS*  r^r  T°  ,*^^  «^^  «^ 
am  only  to  détermine  the  m,  J^ni  f  "l®'"u.  ^"^«^  *^e  Treaty  I 
questioi  hère  toTdedded^H  ïïl  P'^^'^'^.^^^se.  The  simple 
cause  to  justify  hL  t^  fj  trialfl  t'''  ""  '"®^'^°*  P^^^^Io 
j.m8dictioi  the  crimeTs  cSr^ed  tL  u*"  ''''"*'^  ""'^^^  ^^hose 
In  the  case  of  San  S      nï*''^^^"  committed." 

and  others  for  piiicTallS  t\       k"^  ^-  ^^  "-"'•  ^^^  P"  ^l^) 
steamer"  J.  L  Stv'fn  fi     hâve  been  commilted  •msemJr 

judgesoftheQueenTl'e^cirinE^^  1««3'  *he 

on  the  question  yyhethTlZcy^^f''^^^^^ 

Treaty, .lid  not  controvprf^f^  ^'  ^    ^  ?^tium,,vff^  within  the 

Chie/justioe  ?^,Sm    »  No  dS  P"- "'^1'  ^"^^  ^^^«  ^  Lord 
ing  the  vessel  savinT^V  .1       ^^''^\P'^"^<^f<icie,  the  act  of  seiz- 

cînfederLls  maTr4  aterr^^  ^^  seized  for  tLo 

then  ail  the  ciSS,e«  S^^r,  1  '""'^  *"  '^ni^nûon;  but 

s^that  the  magistratc  v^o^Sfi  /   '^'  •^"^''  *"^  ^  «a^^not 
for  trial.  ^  ^^  """^  J"«*'fi^<l  •»  committing  the  prisoner 

^^^'coL^'^tr^JZT^^^^^  "  ^P«"  «-  ^«**^r  point  I 

2H,)  in  advising  tKrerliFo  *r  "if  •  '.'t  '*'  I^'  ^04  and 
where  the  prisent  arrS7n??f  iv*'  ^""'^^^  ^^^^  '»  »  ^ase 
•iesired  to  pr^l^St^^^^r  '  '^"'^^^  '^  "^"^^^ 
pertinent  that  they  are  nuoted  u  ti  7^5^°^  magistrate,  are  so 
tion  of  which  this  fil  Ir  '  1  '*?  «T'^^^nce  upn  the  exhibi- 
as,  accoXg  to  th^e  iL  of'EnT.^'^'K^  ?  ^'^'^' i«  ««'h 

eharged^haS  be  founnoii?^^^^^^^^  *u  *^?^''^^  ''  ^'^^ 

ment  for  trial  if  theTi^e  "r  ^r^^^^       appréhension  and  commit- 
Had  the  treaty  confe^,i,f?!u  ^*^  ^T  ^^'''  ««'«mitted." 

person  charged  fo^^  offZ«  f  «\ect--the  pôwer  of  «ry»;,^  the 
L  _„o»TO  prosented  itself  in  a  diiFen»nf  MiJaS^  ii'  ÎTi.^^^,*"^'*'    " 


fwm 

m 

m 

1^ 

^^ht 

(UtW^^'l 

«1| 

■^  '^^4  "■' 

■ 

H*' 

^î 

■■;?  ♦ 

■■■■» 


Il  ' 


k  ^k,iU^ 


288 

ascertaiument  of  facts  which  can  weigh  nothing  in  anv  conseaufiWf 
andpurely  Radical  investigation  of  the  chargef'~^°J   ^îî 

Thèse  opinions  and  décisions  are,  I  thinkfweU  worthy^e  aL 
tion  of  this  Court   as  showing  that  upon  the  est^bSinent  STa 
pnmafacie  case  of  guilt,  the  extradition  of  the  accZnhouH  h« 
ordered    leasing  him  to  plead  matters  of  j„sSon  befoî^ï 
CW^d  Jury  mvested  with  jurisdiction  ti  %  the  meïTS  tl 

Believing  that  sufficient  notice  has  been  taken  of  this  point  I  will 
viU  now  proceed  to  show  by  authority,  which  cannot  be  coSrovertrd 

P^n1i;lrofjJ2e^ldT^^^  u^!rrSver\*Xfe 
tX  S*'.^hV  '''-'  ^'^^  crfme^^^îZinî  ?l"t 

In  the  matter  of  Fao^wr^^,  (Johnson's  Chan.  Repts  4  vol  ^ 
fr?ï    •"  T«>y  "Pon  a  charge  of  havmg  stolen  |360?n  MonI?ed 

rï^«  om'  1?'  J^'  ^^  ^PP."«^  *^  ^^^  ^^  discharge,  said  :  Whon  a 
case  of  this  kind  occurs,  it  becomes  the  duty  of  the  Maeistrate  oti 
due  proof  of  the  fact,  to  commit  the  fugitive,  to  the  end^thaTa  ™^ 
sonable  time  n^y  be  afforded  for  the  Goverament  hère  to  dchVei 
him  up  or  for  theTforeign  Government  ^  make  the  reîdsite  aonH 
cation  to  the  py  authorities  hère  for  his  surrendeT  TUsSt 
trme  is  supported  equaUy  by  reason  and  authority. 

Fa«.;  observes  (B.  2,  c.  6,  s.  76),  that  to  deliver  up  one'«  owi, 
suhjeets  to  the  offended  State,  theri  to  receive  ju8trce,Ts  pS 
generally  observed,  with  respect  to  great  crimes,''  or  such  Tare 

rnTeSa:re"s*™Zi*;ft^'"r'  ""^^  ^^^"  nationL  AssDLi^ 
EeTtL^™  •  "'  ^l'*^f  ^'^  «'^«'^  eveiywhere,  at  the 
r^^Z  l  h  ^^«^^'g«  "»  the  place  where  the  crime  wm  com- 
mitted,  and  dehvered  up  to  his  justice.  The  sovereign  who  reSes 
to  dehver  up  the  guilty,  renders  himself,  in  somrZasure  an 
<^^omphce  m  the  tvçury,  and  becomes  re^Lnblefor  it.  SèC 
Martem  also  m  his  Summari/  of  the  Lau,  of  Mtions  Turr 
Sk  Ste":S?\*^  -den^çustom,  a  crimin^  ^'rquènSy 2 
back  to  the  place  where  the  cnme  waa  committed,  on  the  reouest 

.ïs^rjf  t£s;^^"  *^  '^  ^'  '^^  ---'  -<i  *^«t  we  oSr 

secVA  WwIk '^ï^?*'"''  *"*^^"*^'  d««'^^««  '■  (B-  2,  cap.  21, 
sec.  J  4,  6),  that  the  State  is  accQuntable  for  the  crimes  of  \tà^ 
subjecta  committed  abroad,  if  it  affords  them  pKrteS   and 


à] 


\  i 


T  1 


289 

natunU  law.    We  ousht  iîfKo  *      ®'^"f®'*  ^^<'°»  ^^^  pmciples  of 

^«*?M.-,  (part  4,  c.  8,  sa.  Ê  Tmtt^  ST'^^''^'  ^  ^^^ 
and  maintaiM  thât  the  dutv  of  dlw  ^'  %  ^^''^^'^  «^  ««>ti"8, 
is  of  common  and  indls»  0^2  "^  ^«'^'^^^  ^«>-  J-^Jce 

««»ce  of  the  law  of  natiol  ar«  n  r  ""^'ï  ^^^^  *°  *I^«  c^nt 

wiA  the  safetjaKmonvfft  ^''^f^^'  *°^  ^'^  inconsistent 
themischief  ^  be  p^eS/.^^^^^^^^^^ 
tte  eqoity,  of  the  wmedy  '  Sev  1^  S"'?''^*^'  as  weU  as 
ngbts  of  property,  and  LTomnatil  ^^..T'^J^^y^iouB  of  the 
Considering  Se  iïeàt  and  ZSfw  •  T*^  *^®  *°^  °^«i^  society. 
aiid  the  pfovincS  of  clT^nV'lï''^"^"  ^"*^««°  *^  State 
ffOffi  one  dominion  to  thT^ther  1  wn  'frf^^^'J  of  passiag 
ihhabitants  on  the  resiSive  f^nr  l^^,-^^  impossible  for  the 
maintam  a  friendlv 7nT^  •  f  "  ^  ^^^  ^  security,  or  to 

escape  with  IrpSy  t^n:  J/*^  -'^i  ''^'''  ^  *W«-es  could 

fomil^^nart'ofthélaw^Vnatn:""^  '"*"'^"  '"^  en^a^ 

it  ^;il^  'TJ^'Zlfè^aT^^^^^  '-'  '  T«^*  ^-ve 

the  prisoners,  and  boldiv  set  .m».      •    ^^elhgerencv  claimed  for 

involves  a  quistionThicrther^^int-'f;?'"?""  '(  ^'^  «"«"««^ 
clearly  shows,  if  it  hw  ant  J«ïf^^  /  the  foregoing  authorities 

tbe  posent  cwe,)  can  oïïv  Kt  ''•^'^^  ^  ^'^^  *^*«^  i*  ha«  in 
of  the  prisoners  indnotu^n  a  t^^^^^  '*  ^'^^  *^'  ^^^  *t«  *^al 
kind.    Sut,  as  my  learaed  fi^n^-r^*^*^^.'''^^^  of  this 

fieW  of  int^maSZ  and  dtaîl^^^  ^î"''  "«  «»«  ^do 

new  and  foreign  point  ofSewZ.K    *^f  .^no^tion  even  from  this 


the  leamed  oounilel  laaï  m»  *«  ^  tt»»Twnrt,the  arguments  of 


■V'  4 


'M 


T».: 


V* 


Ji^iôiâU^àM*.  rfïr      f    .  „-*'^     -\!.^fc,    ' 


290 


in  support  of  this  pretension  thej  hâve  cited,  with  a  show  of  appa»^ 
rent  seriousness,  certain  ¥rriters,  to  prove  that,  as  what  their  clients 
did  was,  from  their  point  of  view,  done  b^  virtue  of  preyioosly 
aoqaired  bellizerent  rights,  therefore  the  cnmes  committed  by  the 
prisoners  at  St.  Albans  cannot  be  made  the  subjects  of  enquiry 
before  the  tiibunals  of  a  neutral  coontry.  But  tijie  leamed  gen- 
tlemen must  be  reminded,  that  before  they  can  ittvoke  the  opéra- 
tion of  international  law  to  justify,  excuse,  or  palliate  the  outrages 
of  whieh  they  «re  accused,  they  must  hâve  proved  the  existence  of 
a  certain  state  of  facts  to  which  their  law  can  be  applied.  As,  for 
instance,  that  their  clients  were  duly  commissioned  by'rëcognised 
military  authority,  to  commit  the  act  complained  of.  That  the  cir- 
cumstwces  under  which  it  was  undertaken  and  executed,  exempted 
them  from  criminal  responsibiUty,  and  above  ail,  even  supposing 
that  the  prisoners  were  so  authorized,  that  thev  hâve  not  forfeited 
\i  their  belligerent  character,  by  commencing  iheir  attack  from  a 
neutral  and  friendly  territory. 

In  the  absence  of  such  proof,  it  is  perfectly  manifest  that  theii* 
International  Uiw  can  hâve  no  application  ;  and  for  this  very  good 
reason,  that  without  it  there  is  nothing  of  record  to  which  the  inge- 
nuity  of  the  most  skilfiil  pleader  can  possibly  make  the  application. 
I  wul,  therefore,  as  next  in  order,  examine  the  évidence,  such  as 
it  is,  Bubnûtted  by  the  prisoners  upon  thèse  points,  ail  of  which  I 
undertake  to  demonstrate  they  bave  signally  fiùled  to  prove. 

The  defence  of  the  prisoners  rests  upon  the  pretended  commis- 
sion produced  b^  Bennett  H.  Young,  which  it  bas  been  strenuously 
urged  entitles  hmi  to  the  récognition  of  an  oflScer  in  the  service  of 
the  so-called  Confederate  States.  And  fîirther,  that  under  this 
commission,  and  certain  mvsterious  instructions  communicated  to 
him  by  one  C.  C  Clay,  Young,  and  bis  accomplices  were  fully 
lioensèd  to  commit  ail  kinds  of  déprédations  at  St.  Albans,  or  else- 
wherè  in  the  United  States. 

This  being  the  modest  pretension  of  the  prisoners'  Oounsel,  we 
will  now  see  how  far  it  is  borne  out  by  référence  to  the  commission 
itself,  which  is  in  thèse  words  : — 


[^i  -f    \ 


Lieutenant  Young'»  Commission. 

CONFEDBRATB  StATBS  OF  AmERICA, 

War  Departmbnt, 
Richmond,  June  16, 1864, 

Sir, — You  are  heiceby  infongaed  that  the  Président  bas  appointed 
^^  Rret  Idëûtênat, ûndef  th»  aetllîl ytepprortû  Februiiy  ITtir^ 
1864,  in  the  Provisional  Army,  in  the  service  of  the  Confederate 


I  r-  \ 


V.   291 

A  Departmeni,  th^Sgh  Aî-'î^ï'  f'T/  ^  «ommunicate  to  tins 
yow  letter  of  acceptance  S,  1  ♦k  a^P*"'^®^*»  *nd,  with 
»nd  attested,  reporting  at  the  wme  tim^^n  °P'  «'^l>8cribed, 

a  yoH  aoc^ept,you  wUl  report  for  duty  to 

.(S.gne<r)    JAS.A.SEDDoXs,cretaryofWar    , 
I-eut.  Bennet  H.  Young  àc,  &c.,  P.A.C.S.  '  ' 

of  the  crin.es  ooiïïttedî;7ep'Srnei!;t^^^ 

reques  surel7,con8ideringK^rtS,L'-^î?^'-    ^^^odest 

^*rf  *  fl«  «^V  next  session  advU^and^^  f  ^en,  proi^ded  M. 
haa  been  no  attempt  to  provrthaï  !k1  ?^' '^*^-  Butthew 
consent  thereto.no'r  i^  S  a  ^îi  o^^^^^^^  ^^  *^^«  o^ 
Young  ever  communfcated  hî<,^!n-  ^  évidence  to  show  that 
to  accent  of  such  aSLS  o^T'  '''^*^^^  «^  ^  '^^g 

with  (he  View  of  proving  that  it  wm  C^nff^  ''*/«  ^een  examined 
to  issue  conunis&ns  i^  thia  11?.^?^^"^  "^ *^«  Confederacv 
wards  when  the  Senate  met     W«lt  v"^/'™'  ^  ^  «^«fied  ^l 
;t  might,  perhaps,  Ce  a^weK/n'"'^  *  "^"^'^'^  HjreyXd 
thenuitterassianeSr^-ff   PYP^'®''^**»*^*^^-    «utsurelv 

«uchadocumentbpTsÏÏÏ^^fe*^^^^  ^'  «^   r 

«oes  abroad  to  rob"and  mu^rh^  -1*^!"®^  Confederacv,  Jd  • 
pretence  that  thia  SifS-       ''^.  ""^^  of  auch  authorit7    tÏ? 
comnùttèd  b;  4e  pCe^'K^A^ "'°.*  "^^-^^^-'^^l 
«cite  "JonidunentTte  ha^i/J,e1^^^^^     ^  ^^*»^°«  *«  ^ 
the  Court.    Indeed,  it  ia  ImÎS^^ ^P} ^"^"^  *^e  attention  of 

receiv^ ftcToks'rbr^^^^^^^^  t""^  ''  ^'  -<"«ed,  «lat  Youn^ 
5«P^y.the  authoritî'orft;l*^,Jï  P-J^ï^^^^^^ 

^•«.instructions  {  wUl  now  wad  wli  f^^^l?"  "^^  «'«<«». 
we  ewdgice. ^  '^'^^  ^o"*  forword  as  I  find  them  jg^ 


^. 


r 'f  I 


•fôj 


f?l 


!  SI' 


ï  :fT- 


h   ri 


!'•. 


292     '■  '   \ 

SConfederate  States  of  America, 
War  Department, 
Bichmond,  Va.,  June  16th,  1864. 
To  LiBDT.  Bbnnbt  h.  Young, 

lieut.,— Ton  hâve  been  appointed  temporarily  First  Lient,  m  the 
Pirovisional  Army  for  spécial  service.  You  wiil  proceed  MÎthoat 
delay  bj  the  route  aiready  indicated  to  you,  and  report  to  C.  G. 
Clay,  jun.,  for  orders.  You  ^nll  colle«t  together  such  Confederate 
solmers  who  hâve  escaped  trom  the  enemy,  not  exceeding  twentj 
in  number  that  you  may  deem  suitable  for  that  purpose,  and  ex- 
écute such  enterprises  as  may  be  indioated  to  you.  You  will  take 
care  to  organize  within  the  terntory  of  the  enemy,  to  violate  none 
of  the  neutrality  laftrs,  and  obey  implicitly  his  instructions.  You 
and  your  men  will  reçoive  transportation  and  customary  rations, 
and  clothing  or  commutation  therefor. 

,  )         JAMES  A.  SEDDON, 

■  '    •■"  »  Sec.  of  War. 


li 


Il  É  -i: 


\:\  .;|- 


P  V}' 


CONFEDBBATB  SlÀIfiS  OF  AmERICA, 

._    War  D^artment.        ^ 
*  \Richmond,  Va.,  Jiîne  16tii,  1864. 
To  LiEUT.  Bbnnbt  h.  Young,    „  . 

I^eut., — You  hâve  been  appointed  temporarily  Ist.  Lient,  in  the 
Provisional  Army  for  spécial  service.  * 

You  will  proceed  without  delay  to  the  British  Provinces,  where 
you  will  report  to  Meisr».  Thompson  and  Clay  for  imtmctions. 

You  will,  under  their  direction,  collect  together  such  Confede- 
rate soldiers  who  hâve  escaped  from  the  enemy,  not  exceeding 
twenty  in  number,  as  you  may  deem  suitable  for  the  purpose,  and 
will  exécute  such  enterprises  as  may  be  entrusted  to  you.  You 
will  take  care  to  commit  no  violation  of  the  local  law,  and  to  obey 
impUoitiy  their  instructions.  You  and  your  men  will  reçoive  from 
thèse  gentlemen,  transportation,  and  Âe  customary  rations  and 
clothing,  or  commutation  therefor.  ; 

JAMES  A.  SEDDON,  Sec.  of  War. 

Va.,  June  16th.  i 

CONFEDBRATE  StATES   OF  AhEKIOA, 

^War  DeiJaetmbnt, 
Bichmond,  Val,  June  16th,  1864. 
Lieut.  B.  H.  Young  is  bereby  authoiWd  to  organize  for  spécial 
service  a  Company,  not  to  exçeed  twenty  in  number,  from.those  who 
belong  to  the  service  md  are  at  the  time  beyond  tiie  OoniBdëfSt& 
States.  j 


'  jftu. 'AÎ*  Jt.  Aèia  ^i,ii,j4i(-    *-i    ^ 


S'-i        Ï»-V  AWJ^L  i*-*ti*  --1  l'a    ^'^    *^J£(,^_      'f* 


xi-f  i,f'  ^n  1 


.  Lieut.  in  thc 
)vinces,  where 


298 

They  will  he  entitled  to  their  mv  «.*:..«»    i  ni-  '        . 
portation,  but  no  other  cJmwLS  ^ï  .  '  "''**^î°^'  *°^  *^»^ 

anteïtS,ÏÏe^Sl!îï^        this(l)epartn.ent, 

to  their  respective  com^nies!    ^  '       *^  '°'^^'"  '^^^^^'^ 

JAMES  A.  SEDDON,  Secretary  qf  War. 

inetruotiona  given,  Youne  ia  oS«?î  ^^"^®;    ^  *^«  «rs* 

?-;erto1î^eed^.£j;74 1  ZS^'^^ 

Jane  lart,  eïer  subscrihed  ifîl  «/  ?  "^^^  ™*°  "I^^  t^®  16th  of  > 
tnuiictor;  toTachSf  YorZZ^  f  ^7  «o  ridiculousiy  con- 
he  did  not,  and  for  this  re««^n  Xî  ^  ""1^®  ^  *^®  ^«"«f'  **»«* 
the  conviction  thaT^e  pr^S;]  ,1  ?^  '*^°|'7  •'"Pressed  with 
been  fabricated.  to  mer+Kt-  ^^^"""T'î  ^^  mstructions  hâve 
Bat  whethÏÏ  aTnSn  âi^f  • '^.  '^  *^"  P™°"«"'  Po«itio°- 
neither  the  soTcXd  fl^s^on  n^lL?  ''  "'*  ^^^^^'^  f^^'^'  «« 
wnvey  any  authoritv  to  tT»  11^       *  accompanying  instructions, 

Counsel,  seems  to  hâve  866^  faio^  n?  !,  ^î:^^"*™  *°^  *»»«i' 
ing,  ho^ver.  that  C  C  n«W  '  f  ^T**  ^^'^*-  Remember- 
th^  inveetiStiT  that  k  &  i^'  ^'^  ^^^  conspicuously  in 
riBed,  «ad  Cd  thf  elltinn  ^'ï  ''l.'Tiu*"^'^'  P'^"«d'  '^'^tho- 

the  crimes  coSd  at  ^^1^.        °.'  J^.authority  to  sanction 
ft^m  Canada  ^'^'^'  *°^  *°  ^««"e  "iKtary  orders 

hialettorto-YQaaff;-_- 


'''  : 

*  ; 


,^«     ^    kiîl 


m}î% 


Sf\.'i.Jf<i'.'i->v.'t'.      ; 


"y' 

IV-   t 


\ 


\ 


'\ 


294 

PAPER  p. 

Mem.  for  Lieut.  Bennet  Young,  G.  S.  A. 

Your  report  of  your  doinga,  under  jour  instructions  of  16th  Juno 

last  from  tne  Secretary  of  War,  covering  the  listof  twentv  Confede- 

rate  soldiers  who  are  escàpediprisonerS)  collected  and  enrolled  bj  jou 

under  those  instructions,  is  received. 

Your  suggestioos  for  a  raid  ûpon  accessible  towns  in  Vermont, 
commencing  with  St.  Albans,  is  approved,  and  you  are  autherised 
and  required  to  act  in  cot^ormity  with  that  8uggesti(m.< 
October  6, 1864. 

C.  C.  CLAY,  JUN. 

Commissioner,  Ç.  S.  A. 

Now,  I  think  it  may  be  ftùrly  asked,  who  is  this  C.  C.  Clay,  who 
has  arro^ted  to  himself  such  cxtraordinary  powers  in  a  neutral 
territory  :  George  N.  Sander^  in  his  évidence,  says  :  I  know 
Mr.  C.  C.  Clay,  whose  name  is  suWribed  to  document  P.  He  was 
then  exercising  the  authority  of  a  Ctonfederate  agent,  claiming  full 
ambasaadorial  powerè,  a»  weîl  civil  a%  military.  I  had  seyeral 
<;x)nver8ations  with  Mr.  Clay  about  the  St.  Albans  raid.  He  informed 
me  that  he  directed  the  raid,  and  gave  the  order  for  it — the  St. 
Albans  raid — and  Bennett  H.  Young  was  idstructedjby  him  to  carry 
it  out.  Mr.  Clay  told  me  about  the  eighth  day  of  ij^cemberlast,  a 
few'dâys  before  he  left,  that  he  would  leave  such  a  letter  as  tiie 
paper  writing  marked  P,  and  whioh  I  infer  had  not  been  written  up 
to  that  time.  The  letter  which  he  said  he  would  write  on  that  oc- 
casion was  a  letter  assuming  ail  the  responsibility  of  the  St.  Albans 
raid,  for  which  he  was  responsible. 

Now,  if  we  are  to  believe  Sanders,  ancLi  know  of  no  reason  why 
we  should  disbçUeve  his  testimony  .upo^  this  point,  the  prisoneis 
had  only  the  verbal  authority  of  C.  C.  Cwy,  for  their  doings  at  St. 
Albans,  upon  the  19th  of  Octobeà.  The  iptter,  or  mémorandum, 
as  it  is  called,  bearing  date  6th  October  last,  was  undoubtedly  written 
after  the  prisoners'  visit  ta  St.  Albans,  and  in  the  mondi  of 
December,.a  day  ox  two  before  C.  C.  Clay  withdrew  himself  fre||^ 
Canada.  But  tms,  again,  is  of  little  conseq\ience  j  for  it  is  to  be  hop^F 
that  the  assumed  authority  in  Canada  of  a  io^diêani  Southern  rebel 
agent,  will  not  be  permitted  to  ovei*ride  ourHwn  laws,  to  nullify  car 
treaties,  and  to  imperil  our  fnendly  relations  with  the  United  States. 
Besides,  Clay,  of  ail  others  is  leà^  entitled  at  our  hands  to  firiendly 
récognition.  It  is  in  évidence,  that  from  the  moment  he  set  foot 
in  this  Province,  he  disre^arded  our  neutrality  laws,  which,  so  long 

him  as 
ôfWm. 


î  I      u 

■  i 


f '■',;«! 


«S:^ 


; 


■  -  M 


^ay  for  instructions,  was,  4^t  after  a  consultation  I  had^Ui  the 
CouDsel  for  the  defence,  it  was  decided  not  to  ^uce  it^beciL  it 
nught  mvolve  Clay  in  a  breach  of  the  neutraUty  laws  " 

Another  paper,  omitting  the  ytotûs  proceed  to  the  Briti»h  Pro 
r,«ç«,  was  therefore,  substituted  ;  a  proceeding,  which  sh^^^ 
dextenty  of  the  piasoners  fri(^nds  in  maïufacturing  évidence  tTmSt 
th?  requnrements  of  their  ca8e.    Is  it  not,  however,  stran^X 
Clay   who  (accordmg  to  Mr.  Sanders)   claims  t^  e3e  in 
Canada  fuU  ambassadorial  pokers,  civil  as  weU  as  ^x^TCZ 
made  his  appearance  at  anv  tbie  during  this  investigSn  v    ^s 
Buredly  rfhe  is  clothed,  as  Sanders  tells  u?,  with  such  SiZer  imd 
auAonty,  his  évidence  might  hâve  beenofsome  impoiW  to  Se 
pnsoners.    At  ^  rate,  it  womd  hâve  been  inteŒg  to  verv 
many,  no  doubt,  to  be  affordejl  an  opportunity  of  seeing^the  TA 

Z^f^f  """^  ''t^  ever  WastTham^ within  hfr  Wde" 
But  the  fa«t  18,  your  Honor,  Cla^  dared  not  appear.    And  as  à 
proof  of  t^  we  find,  that  in  ordeî  to  screen  his^^TguaT  and  i^ 
save  hunaelf  from  punishment,  he  hae  todfrom CanIdafÏÏdnïwi& 

the  moneysstolenbythôprisoners  from  the  people  of  St.  Albans  And 
&dCt!/f -"Yf  *^  conspirator'l^t  the  laW  tîe 
Kll?  i^  \  ^u*^*  P*^®'  *«°^*7  "^^  ^êlfare  of  Canada  : 
he,  who  had  not  even  the  courage  to  sttod  by  his  friends  and  accom 
phces  m  their  hour  of  trial,  that^is  set  up  as  a  justificZn^?r  sî 
AJbaM  outrages,  and  for  which  ju^ciS  récognition  is  dema^ded  .^ 
from  this  Court.    I  beheve,  however,  that  your  Honor  will  not 
Banotion^uch  a  montrons  proposition  for  a  moment-one  utteX  v 
abhorrent  toeyeiy  idea  of  justice,  and  one  which,  I  hesitate  nS  to 
jay,  if  entertamed  by  the  people 'of  this  Province, .  wiU,  I  vrrily 

wl^!  ï^r^"?'  *°î  j"'*'^  «^'  ^y  *^«  United  States'  as  S 
^untto  a  déclaration  ofwaragainstthem.    I  sav  iustlv  so  SjT 

S^em'^r  ^f^"«rr  P~.  it  mustt*&^'^' 
them  aaJ>eUigerents,  and  the  cnmes  imputed  to  them  at  St.  AllSns 
as  so  many  acte  of  le^timate  warfore."^  Now,  considering  ^e  riJl 

«n3^*£f "7?**  '*  T  T"""^^  "^  Canada,iuid  started  Lm  Camida. 

'^aVL  Si  ^H'  '''V'  ^  ""^P^^  *^»*  ^^^  récognition  ^d 
gudidaljancbon  of  such  an  atarocious  outrage  should  «cite  thé 
indignation  •oftiiéi>eople  of  the  IJnitod  States,  and  Muce  them  to 
_iook  upon  us  as  their  enemiea  ?         <A^ 


O 


w 


Mr^C^^i  leave  tWs  pomt,  iet  me  remind  vour  Honor,  that 
Jttr.  »avi8,  thé  Président  of  the  so^aUed  Confederate  Sta^eî,  bas 


•  fil 


j  *'■• 


ÎV 


I 


V)   i^J'^\iX%  rfx*ii 


&44^ît-»«Tbh-^***  ^6.    * 


ù\ 


'"♦ 


■1 

M 

^^•' 

¥ 

"■ 

A 


Il  :: 


■iS'  J 


Il  ^i' 


s. 


3M       . 

iifOi  M  thig.hour,  •oknowtedged  the  .wta  of  the  priBonew,  or  in  anr 
wajr  MUamed  tiie  responaibuity  of  what  th«y  did  at  St.  Albanê.  In 
rapport  of  this  Btatemettt,  I  refer  to  tfie  évidence  of  the  Revd. 
Stephen  F.  Cameron,  thé  measenger  dispatched  to  Riehmobd^  to 
obtain  from  there  a  ratiflcation  of  the  çrisonera,  aotfl,  or  auoh  other 
-  évidence  aa  would  prove  that  their  raid  was  djureoted,  sanctioned, 
and  authorized  by  die  Confederate  eovernment,  and  thatthey^ 
the  priflonen,  wero  duly  oommisnoneof  offioera  and  soldien  df  the' 
Confederacv.    Your  Honor  will  remember  how  often  and  how  ear-^ 
nestb^  my  leMued  frienda  protested  aeainst  being  called  upon  for 
the  défonce  of  theif  clients,  nntil  they  had  an  opportunity  of  com- 
munication with  Richmond.    But  why  this  neceesity  for  comnrani-  ' 
cating  with  Richmond  if  the  pretended  commission  and  written  mé- 
morandum of  C.  C.  Caay  were,  tCt  Àe  time  of  their  production  by  the 
pnfloners,  aswe  are  told  they  were,  suflScient  to  prove  their  military 
êtatusf    The  fact  is.  Sir,  my  leamed  friends  knew  then,  as  they 
know  now,  if  theywould  but  makfe  the  admission,  Ûiat  the  prisoners 
had  no  aiuthorily  Whatever  to  justify  their  crimes,  or  to  atay  the 
demand  for  their  extradition.    And,hence  their  fréquent  appeals 
for  dday,  to  communioate  with  the^pilstracy  at  Richmond.    Well, 
that  delay  was  açcorded  tô  them,'*^d  now  that  the  messenger  bas 
retUmed,  let  us  see  what  he  bas  brôu^ht  to  aid  the  cause  of  the 
prisoners,  I  find.  Sir,  that  he  bas  lûd  before  this  Court  as  the  resulf 
of  his  perilous  joumey,  three  copies  of  three  muster  r»lls  of  three 
Companiee,  in  which  the  names  of  the  prisoners  bave  been  very  badly 
written  indeed  ;  and  so  far  back  it  would  slèem  as  two  years  ago. 
Now,  your  Honor,  this  is  not  the  kind  of  évidence  which  the  prisoners 
^in  their  affidavits  fyled  in  support  of  their  application  for  dql^y, 
^|teted  they  needed  for  their  defence,  and  cèuld  procure  upôn 
«Communication  with  Richmond.     The  truth  is,  they  had  hoped  that 
the  Confederate  Président,  if  appealed  to,  might  be  inducc 
their  acts.    But,  although  I  would  ^t  attach  the  least  i 
to  his  avowal,  even  if  it  had  been  ttmi,  it  is  still  wcBHiby  S 
•  that  he  hs»  withheld  it.    And  the  reason,  said  Mr.  Canl»».,»  ««- 
évidence,  is,  "  That  his  General  Ohler  in  the  Burley  case  had  been 
dîsregardçd  hj  the  Judges  of  Upper  Canada.    Président  Davis,  ob* 
seï^^the  witness,  seemed  jtiqueâ  and  indignant  of  thefacta." 
"^-^*^tt»<Honôr  is  the  eJtcuse  offered  for  the  réticence  of  Mr. 
lingness  to  hold  himself  or  bis  Government, 
.    ii|i|  imii  -v.^K3r^^*  fortthe  outrages  committed  at  St.  Albans. 
^*"lliaSI>lil°l  ^^^  ^^Confederate  authorities  bave  pointedly 
'®^""P1PKS^    **  thopfitfcry  katm  claimed  for  the  prisonere, 
sjipplj?^  wlFby  the  subititution  of  your  sanction  for  their  autho- 
jrity  ?  ï  eamestly  hope  yo»  wàll  not  pkce  youiself^n  «leb  i^ 


Tkii 


snoE 


I':  '; 


viable  position,  a  position  whic|i  I  take,  the  liberty  of  saying  would 


«:fli!*«%-    i,_--.- 


,f 


/ 


297 


b»  dâhonoring  to  the  high  chawcter  of  the  judiciary,  and  ex- 
totjjey  PmAmU  to  the  beat  urtorests  of  the  Uv^oî  Sntï 

rfïulS^ïW  ***,  United  Statea,  and  wju»  the.further  objoct 
LTffir*  .7  "^*  '^'^^  ^^^^  '^^'y»  "^"^  <*'«•  Jhterost,  if  ve  wiah  to 
^»*.«p«f#  ^.oureèlves  a  oontinùance  of  the  blesàngs  of  peaoe.  to 

Z^JJ^      impartiaUty  in  m  pending  feonffict,  anî  net  to 
pr  one.of  the  opnteudmg  parties  to  the  injury  of  the  othor. 

DUTY  OF  NBUTRALS..         ,  x 

.iwif/^^^i/'*^'  "i  **'"  °^*'«®  *^  *^e  «"«d  Jury,  in  tho  onao 
of  Wenfield,  (Reported  in  Wharton',  Eept..  of  State  ÎWaH! 

States,  made  the  followmg  seiisible  remarks,  which  I  quote,  m 

Z  TtÏL/q?  *  "^*^*  "^""^«^  ^^=-"  ^y  *he  laws  of  naUons, 
Se^?^ttft^'''J^  ?  r?*^.  P«^«^'  are^ound  to  observe  ttio 
tew^lTïrV'iî?'"*****  ^y*"  proclamation  of  the  Président 
towMds  aU  the  beUigerent  powers,  and  that  although  we  may  havo 
no  treabes  ^A  them.     Surely  (said  he)  no  enga^mentecan  Je 

^Z^t^  preBerve  large  portions  of  the  h  Jan  race  froTïe 
Sif5  '"^^^  "*''^'^*.  *°  ^«^--^While  the  people  of  othïr 
nations  do  no  violence  or  injustice  to  onr  oitizens,  it  woïdd  certai^nlv 
be  cnnunal  and  wicked  In  our  citizens,  for  the  toke^of  pCdw  to 
do  violence  and  injustice  to  any  of  them.  ^  ' 

theJe^wï/llT- ®î?^'  ^'^y**^  '"^•^^"*«'  *«»^«t  foreign  nàtioûs, 

Sil^  *     *^*  "*  î\'*'°*'  """""«"^  to  you,  and  instetd  of  tha 

w«  ;S^M  **'"°"?u-  ^^'^  °'^*'^^«  ^'^  esteilished  between  ail  men 

3Jî!Klr®  f  *^"*«  ''°*  *'''«  "**^on  robbing  another.  The  respect 

^.«r^îï -îf  ?°''  *'!'®?  *°  ****'^  ™I^«»  »  <*"ty  on  its  Government, 

cause  ail  its  laws  to  be  reapected  and  obeyed,  and  that  notonlv 


^ite  proper  citizens,  but  also  by  those  strangéw  vho  may  visit  and 
S"r^î,T^V**f  ite  territories.  îhere  is  no^^ciple 
better  estabhshed  tlmn  that  ail  strangere  admitted  into  a  couniïy 
aw  donng  their  résidence,  sttbject  to  the  laws  of  it  ;  hence  it  foUows 
^^esubjectBof  beUigerent  powers  arebouid,  whUe  iï  the 
oountry,  to  respect  the  nevtrality  of  it." 

no  i^d^«Ti  -î"  *^  ^  ^^  *^*  P^^""  ^^  ^  ^  St.  Albans  answers 
no,  and  well  it  may  so  answer. 

and  '^J^A  î^r*®^ ^'f^I'^ "^"^  oontemplate  with  anidety 
and  regret  the  dewdatioa  aad  distreiM  whji>h  a  war  bo  genorol 
TJwiraBthen  bemg  oanied  on  between  Austria,  Prussia,  sSS. 
GlreatBntain  and  the  United  Ne&erlands  of  the  one  -pMtTM 


^M^Âi^A^^sa^^'S' s.   ^x**-^^¥-    '■> 


/"     .■ 


:.      1'. 


^H.i 


r  n.  ■ 


:.k... 

,  :,;■ 

^mÛ 

K 

:| 

./i     :iJa 

uÙ^ 

jUp 


-■=^ 


*  :■•, 


298 


■?  ,       ;;■■ 
;    «  '.r 


■■*! 


France  of  the  other)  and  so  inflamed  will  probably  spread  orer 
more  than  one  country,  let  us  with  becoming  gratitude  wiaely 
estimate  and  cherish  the  peace,  libertj,  and  safety  with  which  the 
Divine  Providence  bas  been  pleased  so  liberally  to  bless  xis.  Self- 
preservation  is  a  primary  duty  of  a  state  as  well  as  of  an  individual. 
To  love  and  to  deserve  an  honest  famé,  is  anothër  duly  of  a  state 
as  well  aa  of  a  man.  To  a  state  as  well  as  to  a  man,  réputation  i» 
-a  valuable  and  an  agreeable  possession.  But  with  war  and  rumors 
of  war,  our  ears,  m  tiiis  imperfect  state  of  things,  are  still  assûled. 

"  Into  this  unnt^ral  state  ought  a  nation  to  suffer  herself -to  bo 
drawn  without  her  own  act,  or  the  act  of  him,  or  them,  to  whom  for  , 
the  purpose  she  bas  delegated  her  power  ?  " 

"  Into  thisunnatural  state  should  a  nation  suffer  herself  jt»  be  drawn 
by  the  unauthonzed,  nay,  by  the  unlicensed  condûct  of  her 
citizens  ?  '» 

"  Humanity  and  reason,  says  Vjattel,aa.j  no." 

In  the  case  of  Talbot  r«.  Janson,  fôr  a  breach  of  neutrality  law, 
(1  CuHi8*  Eepts.  of  Décision  in  the  "Sup.  C.  of  the  Û.  S.,  p.  iséy-^ 
Judge  Patterson  said: — "  The  United  States  are  heutral  in  the 
présent  war  ;  they  take  no  part  in  it  ;  remahi  common  friends  to 
ail  the  belligerent  powers,  not  favoring  the  arms  of  one  to  the  détri- 
ment of  the  others.  An  exact  impartialily  must  mark  their  cônduct 
toward^he  parties  at  war,  for  if  they  favor,  they  favor  one  to  the  injury 
of  the  other.  It  would  be  a  departure  from  pacifie  principles,  and 
indicative  of  a  hostile  disposition.  It  would  be  a  fraudulent  neu- 
trality." At  (p.  XB6)  he  says  ; — "  The  principle  deducible  from 
the  law  of  nations  is  plain  ;  you  ahall  not  make  iiae  of  our  neutral 
arm  to  capture  vessela  of  yodr  enemies^  but  of  ouR  frimds.  If 
you  do,  and  hring  the  eaptured  vends  within  our  JuriadiHion, 
reêtitution  will  he  awarded.  Both  the  powers  in  the  présent 
instance,  though  enemies  to  each  other,  are  friends  of  the  United 
States,  whose  citizens  ought  to  préserve  a  neutral  attitude,  and 
ehould  not  assist  either  party  in  their  hostile  opération." 

PhiUimore  (V.  1,  2,  p.  189)  says  :  «  A  RebelUon  or  a  civil 
commotion,  it  may  happen,  agitâtes  a  nation  ;  while  the  authorities 
are  engaged  in  repressing  it,  bands  of  rebels  pass  the  frontier, 
Bhelter  themselves  under  the  protection  of  the  coterminous  State, 
and  from  thenoe,  with  restored  strength  and  fresh  appliances,  renew 
their  invasions  fipom  the  State  in  which  l^ey  hâve  escaped.  The 
invaded  States  remonstrate^  The  remonatrance,  whether  from 
favor  to  the  rebels,  or  feebleness  of  the  «xecutive,  is  unheeded,  or 
at  least,  the  evH  complained  of,  remains  unredressed. 
^  ^  this  stote  of  things,  the  invaded  State  is  warranted  by  inter- 
nàl^nâ  law  in  erotting  ihe  fnmtier,  wA  in  taking  <Â«  n«ff«Ma»y 
meoMforhtr  »qfety^  vfhetker  iheu  be  tke  capture  or  ditpertwn  of 


V*    I» 


■'S 


299 

*^  *'eiel9,  or  the  deitruction  of  their  kfrM,n7,^i^        ii 

cfihe  cme  mayfairly  re^re  '^'^^^Md,  as  the  exnffencies 

the  two  Statef in  w     iH^^^^^  ^^  °^  ^fetion,  and  Wolve 
or  ne<rl(>cfAfl  éliû  cl,^.,«-a-      lZ       "«"i^uëf  >  ana,  u  tnat  is  refused 

5^^j£  «Se  oTh^;'^^  «&S 

place  within  the  jurisdi^tional  limita  of  pacifif  SoverSs  wSkJv  ■ 

tCn  „ni.  r  1       i   •  P"^®*  ""^^  ""^«ï"  suck  circumstances  are 
then  udawful,  and  g,ve  to  the  neutral  the  richt  of  daiSr  froî^ 

een'c'oSS^^-'^'^*'^"  acts,^.reparSl,  a^^TSfytS  \ 
Ai«ri?.rr''°®  °/  **^*  ^»y^S  i»»  '^ait  at  Southamp^on,  bj  an 

I  thmk  it  necessary  to  state^^to  you,  that,  except  b  ^  of  S 


\ 


\'^ 


^••*"\      I        -V 


H 


fcj; 

il' 


300 

of  weather  forcing  them  to  land,  Her  Majesty'B  Govemment 
cannot  permit  armed  mm  in  the  service  ofaforeign  Govemment 
to  land  upon  Br^ish  Territorv,  (Ibid.,  page  721.)  There  is  then 
no  exception  t©  the  rule,  thatlvery  vojuntary  entrance  into  neutral 
temtory,  with  hostile  purposes,  is  absolutely  unlawful.  "  When 
the  fact  18  eatablished,"  saya  Sir  W.  Scott,  it  overrules  every  other 
considération.  A  capture  made  under  such  circumstances,  is  done 
away  ;  the  property  must  be  restored,  notwithstanding  that  it  may 
actuaUy  belong  t»  the  enemy.  (/Wd.,  page  727.>,  It  is  a  settled 
pnnciple  of  the  law  of  nations,  that  no  belligerént  can  richtfullv 
make  use  of  the  territory  of  a  neutral  State  for  belligerént  pur- 
poses,  without  the  consent  of  the  neutral  Government.'' 

VattelÇi.  3,  c.  7,  p.  344,)  says  :  It  is  certain  that  if  my  nei<rh- 

bor  afiFords  a    retreat  to  my  enemies,  when  defeated  and  toc 

much  weakened  to  escape  me,  and  allows  them  to  recover,  and  watch 

a  favorable  opportunity  of  making  a  second  attack  on  my  territories 

this  conduct,  80  prejudicial  to  m^  safety  and  mterèsts,  would  be 

incompatible  jith  neutrality.    If  therefore,  my  enemies,  on  ^uffer- 

ing  a  discomfiture,  retreat  into  his  country,  although  charity  will 

not  allow  him  to  refuse  them  permission  to  pass  in  security,  he  is 

bound  to  make  them  contmue  their  march  beyond  his  frontiers  as 

soon  as  possible,  and  not  suffer  them  to  remam  in  his  territories  to 

watch  for  a  convenient  opportunity  to  attack  me  anew  :  otherwise 

be  çves  me  a  nght  to  enter  his  country  in  pursuit  of  them.     Such 

treatment  18  often  experienced  by  nations  that  are  unable  to  command 

respect.    Iheir  temtories  soon  become  the  théâtre  of  war  ;  armies 

march  encamp  and  fight  in  it,  as  in  a  country  open  to  ail  corners. 

Vattel  (B.  2,  c  6,  p.  161,)  says  :  But,  if  a  nation  or  its  chief 
approves  and  ratifies  the  act  of  the  individual,  it  then  becomes  a 
public  concem  ;  and  the  injured  party  is  to  consider  thç  nation  as 
the  real  auihor  of  the  mjuiy  of  which  the  citizen  was  perhaps  only 
the  instrument.  f       ï-        j 

If  the  offended  State  bas  in  her  power  the  individual  who  bas 

nnnfA'°''"'7;  ï^"'*^'  "^^^^^  ''"*P^"'  ^"°g  ^"^  *«  J^s^^e  and 
pvmisb  him.     If  he  bas  escaped  and  retumed  to  his  own  country, 

she^ught  to  apply  to  hiri  sovereign  to  bave  justice  done  in  the  case. 

And  smce  the  latter  ought  not  to  suffer  his  subjects  to  molest  the 

subjects  of  other  States,  or  to  do  them  an  injury,  miich"lbs8  to  cive 

open  audacious  offence  to  foreign  powers,  he  ought  to  compel  the 

transgresser  to  make  réparation  for  the  damage  or  injury,  if 

possible,  or  to  infiict  on  him  an  exemplary  punishment,  orfinally, 

aceordtng  to  the  nature  and  the   circumstances  of  the  case,to 

deltver  htm  up  to  the  offended  State,  to  be  there  hrought  to  îusàee. 

_  AM8ft.iim,incendiarie8  and  robbew  are  seîzed  eveiywhere,  at 

the  désire  of  the  sovereign  in  whose  temtories  the  crime  was 

committed,  and  are  delivered  upto  his  justice. 


301 


»< 


4k?Î!  Sovereignwho  refuses  to  caus*  réparation  to  be  made  for 
ihe  damage  done  hj  his  subject,  or  to  puiiish  the  offender,  or  finally 
to  debyer  him  up,  renders  himself  in  some  measure  an  IccompS 

tt»e  »njmT,.and  becomes  responsible  for  it.  But  if  he  delivers 
up  eiAer  tÈç  property  of  the  offender,  as  an  ihdemnification  L 
caws  ^at  wdl  adnut  of  pecuniary  compe^tion,  or  hU  perZ\  S 
ordert^  he  may  suffer  the  punishment  due  to  his  crime,  the 
offended  party  bas  no  further  demand  on  hib." 

In  support  of  the  doctrines  and  opinions  thus  enunciated,  many 
other  emment  wnters  and  authors  could  be  qt^oted.  But  I  conce' vc 

Jcient  authonty  to  réfute  the  mistaken  opinions  entertained  bv 

I.now  caU  your  Honor's  attention  to  the  caèe  of  Bennett  G 
Burley,  lately  extradited  upon  the  demand  of  the  United  States 

S.Tf!^  PK?  ^'''*'^  "P^".  *  '^'^«"  ^^  robbinj.one  Ashiey,  on 
board  the  Philo  Parsons,  a  steamer  sailing  at  the  time  on  Iake 
S*  J^«  P"«f  erj^hen  ordered  to  render  an  account  of  his 
çonduct  before  the  Reoorder  of  the  City  of  Toronto,  set  up  as  a 
,   jusfafication  of  the  aot,  that  hé,  Burley,ia8  a  commiiioned  office? 

l^irri"  '^  *^'  r  '*"«?  Confederate  States,  èhat  he  wL 
entitled  to  be  regarded  as  a  belligerent,  and  that  hiô  object  in 
teking  forc^le  possession  of  the  PhUo  Parsons,  which  he  imd  otheS 

to  enable  his  party  to  effect  the  release  of  Southern  prisoners 

Sn  A  ^^f;^f''yj!^^otjnBmed,md  ordered  extra- 
dition. A  writ  of  ffabeas  Corpus  was  next  applied  for  bV  the 
pnsoner's  counsel.  The  application  was  made  to  Chief  J^tice 
Draper,  who  had  sitting  with  him  three  other  Judges.  It  was  Verv 
ably  argued  and  very  ably  opposed  by  the  counsel  engaged  on  Sh 
«des,  and  after  a  patient  and  careful  considération  of  the  factsS 
tf»e  law  applicable  to  them,  the  writ  of  Habeas  Corpus  was,  by  thèse 
earned  Judges  refused.  Be  it  remembered,  too,^t  in'thrcLe 
^e  pnsoner  produced  an  order  or  proclamation  from  the  Confederate  \ 

sibiUty.  But  the  Judges  held,  and  held  righUy,  that  no  such  order 
or  proclamation  codd  justify  the  circumStanc^s  under  which  iho 
cwne  was  committed  commencing  with  the  violation  of  our  neu' 

ÏÏSÎ;  Tf  •  li^V'^''^'  ^"^  P^^^  '^  *°^  P'ac«  t«  «rge  it  as 
jurisdiction  to  hear  aiid  détermine  upon  the  mérita  of  the  ofe^f 
oharged.    There  is  then  this  différence  between  the  cale  of  Burky 


I 


itik'ïul:Uui~(-^  ai.  . 


h  .  i 


t> 


M 


802 

and  that  of  the  prisoners  now  before  this  Court,  that  Mr.  Davis 
■avowed  Burley  8  deed  andrefused  to  give  a  like  récognition  to  the 
acts  of  Bennett  H.  Yonne  and  his  accompUces.    But  then  the 
soundness  the  legahty  of  dus  judgment  hâve  been  questioned  bv 
ray  leamed  fnends  on  the  other  «de.    Indeed  one  of  them  has 
,  carned  his  cnticism  to  the  extrême  length  of  sayina;,  that  the 
judgment  18  a  dwgrace  to  the  judiciary  of  Upper  Cj^ala,  and  is  a 
proof  of  the  unfitness  of  the  Judges  in  that  section  of  the  countrv 
to  deal  with  questions  of  international  law  !  !    Perhaps  this  is  the 
opmion  of  the  gentleman  who  has  denounced  in  such  strona 
vituperative  tenns  the  Chief  Justice  and  his  brother  Judges.    But 
certainly  it  is  not  the  opinion  of  the  eminent  writers  upon  interna- 
tional law,  from  whose  page^  bave  read,  nor  will  it,  I  trust,  be  the 
opmion  of  your  Honor.  I  admit,  however,  that  the  leamed  Judges 
whose  judgment  has  provoked  so  muchwrath,  committed  an  unnar- 
donableerror  m  adjudging  Burley's  case,  without  consulting  my 
leamed  fnends,  whom  I  am  sure«would  bave  felt  great  pleasiSe  in 
indoctnnatmg  theu-  Honors  with  ideas  of  international  law  as 
Mderstood  by  Jeff.  Davis,  and  praiîtised  by  raiders  generally. 
Believmg,  however,  that  the  Bencl  of  Upper  Canada  w§l  not  6e 
deterred  from  pursumg  the  path  of  rectitude,  by  the  beUigerent 
observations  of  my  learned  friend,  and  that  it  is  quite  possible  he 
might  be  mduced  to  look  upon  them  with  more  favor,  ifhe  heard 
the  reasons  oftheir  judgment  once  more,  I  will  now  read  a  few 
extracts  from  the  nubLshed  report  of  their  décision,  which,  notwith- 
standmg  ail  Ihat  bas  been  said  to  the  contrarv,  I  still  ^rsist  in 
commendmg  to  the  carefiil  attention  of  the  prisiner's  couALi. 

But,  _  said  Chirf  Justice  Draper,  «  conceding  that  there  is 
évidence  that  the  pnsoner  was  an  officer  in  the  Confederate  service, 
and  that  he  had  the  sanction  of  those  who  employed  him  to 
endeavor  to  capture  the  Mehigan.mà  to  release  the  prisoners  on 
Johnson  s  Mand,  the  mamfesto  put  forward  as  a  shield  to  protect 
the  pnsoner  from  personal  responsibUity  does  not  extend  to  what 
he  bas  actuaUy  done-nay  more,  it  absolutely  prohibits  a  violation 
of  neutral  temtoiy  or  of  any  ri^ts  of  neutrals.  The  pnsoner,  how- 
ever, who  accordmg  to  the  testimony,  was  a  leader  in  m  expédition, 
embarked  sun-eptitaously  from  a  neutral  territoiy.    His  fJSowers 
with  their  weapons,  found  him  within  that  territory,  and  proceeded 
îw^r.Jr'î?*?*  ?Sf  ^^-^terprise,  whatever  'it  wa8,*^into  the 
temto^  of  the  Umted  States.    Thus,  assuming  their  intentions  to 
hâve  been  what  was  professed,  they  deprived  the  expédition  of  the 
character  of  lawful  hostility,  anâ  the  very  comTncement  Z. 
embarkation  of  their  eùterpnse  was  a  violation  of  neutral  territory 
.  aBi«<»trary  to  ^e  letterwdtiieiçirit  of  tiie  înanaeBto  producS: 
This  gives  a  greater  reason  for  carefully  enquiring  whether,  looking 


303 


forward  as  a  pretextto  cloak  very  différent  deïigns.  Taken  by 
thernselves,  the  acte  of  the  prisoner  himself .  cleîriy  establiah  a 
prima  facteciae  of  robbery  mth  violence-at  leàst  accorda  to 
our  law.  The  matters  aUeged  to  deprive  the  priaoner's  acts  of  thi» 
cnmmal  character  are  necessarily  to  be  set  up  byway  of  defence 
to  the  charge,  and  involve  the  admission  that  the  prisoner  committed 
the  acts,  but  denying  theu-  cnminality.    AssunSng  some  act  done 

withm  our  junsdictaon,  wbch,unexpkined,  would  amountto  robbery'; 
it  explanations  were  offered,  and  évidence  to  support  them  were 
given  at  a  prehminary  investigation,  the  accused  could  not  be 
discharged^the  case  must  be  submitted  to  a  jury.  This  case 
cannot,  from  its  very  nature,  be  investigated  before  our  tribunals, 
for  the  act  was  committed  withm  the  jurisdiction  of  the  United 
States.  Whether  those  facts  are  necessary^to  rebut  thè  prima 
faeu  case  can  be  oroved,  can  only  be  determined  by  the  courts  of 
that  country.  We  are  bound  to  assume  that  they  mil  try  and 
décide  it  justly.  "^  •' 

I  do  not,  on  the  whole,  think  the  prisoner  is  entitled  to  be  di»- 
•barged. 

I  should  add,  that,  considering  the  nature  of  the  questions  to  be 
determmed,  I  requested  the  leamed  Chief  Justice  of  the  Common 
Pleas,  and  my  brothers  Hagarty  and  John  Wilson,  who  were  lill  at 
the  moment,  within  reach,  to  sit  with  me  and  aid  me  with  their 
ommon.  I  am  sustained  by  their  concurrence  in  the  conclusion  at 
wnich  1  hâve  amved.  ' 

Chief  Justice  Bichards—'^  Taking  the  évidence  adduced  against 
the  pnsoner,  there  seema  to  bave  been  sufficient  to  warrant  hi* 
committal.  Then,  has  he  shown  sufficient  to  relieve  him  of  the 
charge  ? 

"  If,  on  a  similar  matter  occurring  in  this  country,  I  was  called 
upon  to  décide  whether  I  would  discharge  the  prisoner  or  commit 
him  for  tnal,!  should  feel  bound  to  commit  him.    I  should  sav 
that  lookmg  at  ail  the  facts  as  they  we  presenfed  on  either  side 
the  conduct  of  those  parties,  and  what  they  said  and  did  durine 
the  tune  the  vessel  was  in  their  possession,  was  of  that  equivocal 
character,  that  it  would,  m  the  most  favorable  view  suggested  for 
the  pnsoner,  be  a  matter  for  the  considération  of  a  jury,  whether- 
they  were  actmg  in  good  faith  in  carrying  out  a  belligerent  enter- 
prwe,  or  whether  they  were  not  making  an  expédition  for  the  pur- 
pose  of  plunder,  under  pretonce  of  a. belligerent  enterprise,  thmk- 
ing  in  that  way  more  readily  to  escape  détection. 
\     "Entertainmg  the  opinion  I  hâve  expreaacdj  it  i^  my  dute  to 
^oeolare  thàt  t^e  leamed  Recorder  was  warranted  in  deciS  to 
commit  the  pnsoner  for  the  purpose  of  being  surrendered.    As 


i 


k\ 


g$^X^àMi¥^L'A^%ii-^li!'à\'4J^[*Lpj:^. 


4}f 


r .. 


M 


,  1 


304 

long  as  the  Extradiripn  Treatv  beCWeen  thia  country  and  the 
United  States  is  in  force,  it  ought  to  be  honestly  camed  out,  wid 
in  ail  cases  where  the  évidence  shows  that  an  offence  had  been 
committed,  though  there  may  be  conflicting  évidence  aa  to  the 
facts,  or  différent  conclusions  drawn  from  the  fkcts,  yet  in  thoso 
cases  where  we  would  commit  for  trial,  m  similar  cases  in  this 
country,  we  are  equall^  bound  to  commit  tp  be  surrendered  for 
trial  under  the  Treaty,  and  our  Statute  passed  to  carry  it  out.  Wo 
must  assume  that  parties  wiD  hâve  a  fair  trial  idfber  their  aurrender 
or  we  ought  not  to  deliver  them  up  at  ail,  or  to  hâve  agiîBed  to  do 

80."  ' 

Justice  Hagariy—'-'l  think  the  only  just course  open  to  a  Cana- 
dian  Court  is  to  décline  accepting  either  the  prisoner's  statement 
or  his  alleged  émplojjrer's  avowal  of  his  acts,  as  conclusive  évidence 
of  the  proposition  thaï  his  conduct  was  war  and  not  robbery.  It 
should  accept  the  évidence  offered  as  establishing  a  prima  fade 
case  of  guilt  suflScient  to  place  thq  prisoner  on  his  trial,  and  ail  for 
his  defence.  The  whole  burderi  of  proving  that  the  transferring 
of  the  money  from  Ashltj'a  pocket  to  that  of  the  prisoner  and  his 
friend,  does  not  bear  the  complexion  that  men  of  plain  understand- 
ing  must,  under  the  circumstances,  attributs  to  it,  must  be  thrown 
upon  the  prisoner. 

I  think  I  am  bound  to  a  treaty  so  made  between  my  Sovereign 
and  her  ally  in  a  libéral  and  just  spirit,  not  laboring  with  eager 
aatuteness  to  find  flaws  or  doubtful  meanings  in  its  words,  or  in 
those  of  the  légal  forms  required  for  carrying  it  into  effect. 

We  ase  to  regard  its  avowed  objoct, — the  allowing  of  each 
country  to  bring  to.  trial  ail  prisoners  charged  with  the  expressed 
offences.  Neither  of  the  parties  can  properly  hâve  any  désire  to 
prevent  such  trial,  or  to  shield  a  possible  offender.  If  the  position 
of  the  case  were  reversed,  and  the  prisoner  had  done  the  acts  com- 
plaJned  of  in  this  country,  and  claimed  to  be/a  belligerent  against 
our  Sovereign,  I  think  any  Canadian  judge  or  magistrate  would 
commit  him  for  trial  for  rpbbery,  leaving  him  to  plead  his  bellige- 
rent position  at  his  trial  /or  what  it  was  worth.  I  hâve  neither 
the  désire  nor  the  right  to  assume  that  he  «ill  not  be  fairly  tried 
in  the  United  States.  ïhe  Treaty  is  based  on  the  assumption  that 
each  country  should  be  trusted  with  the  trial  of  offences  committed 
within  Its  jurisdiction.  I  think  the  prisoner  should  be  remanded 
on  the  Recorder's  warrapt,  which  I  think  is  not  open  to  any  valid 
objection.  Had  I  differed  from  the  resuit  arrived  at  by  the 
Recorder,  I  should  then  hâve  to  çonsider  a  doubt  more  than  once 
expressed,  whetheranyjudge  can  review  his  décision."        ' 

( After  reoiting4h&iagts^Mr.  Justice  W%U<m  proceedsO^ 


"  Thèse  proceedings,  so  mean  in  thei{  inception  and  so  ignoble 


305 

not  the  bona  fide  of  th^  »«♦    ^^  °^  '**  «ccomplishment     R„ï  ! 

comnuttea,  and  we  carmTdoubffi  thi"^  T^""^  •^^'^-^^^^^^^ 
HMwstered.      Then  we  are  told  fW    uu*  •'"f*'*'®  ^'»  "'^  fairly  ad- 

the  Président  of  the  Confederate  Lta        ^?*  ^^^  manifesto  of 
^«^g  it,  md  therefore  he  is^rsubW? .  "^r^^.  ^'^^  ««*  «"d  as- 

United  States  bas  done  frnm  +1,0^  ™.  x  *  *  oelhgerent,  as  th<^ 
^olted  States  -as  XtVf'tat^  V^Z'  ^^^'^^'^^^  "  th' 
tmotion  between  an  order  to  Hn  „  L'ir  *^®^®  "  «»  obvious  dis- 
tion  and  avowai  of  eïï  an  act  aLrtT'?'  ^^'  ^^  *«  reco<ït 
an  açt  of  war,  the  other  an  alt^?  ' ,  l^  uT  ^^°«-  The  onf^l 
.one  w  consistent  with That  G^elt  Bri.^^^^^  government.  :?he 
«not,    I^orusiudiciaUytog^veeS^^^  ' 

of  this  act,  wouïd  be  to^-ecoSe  th^  .  •  ^  *''^''^^  *°^  «^option 

2?o  au^orfty  for  the  dlg  of  The  IK^^'^*^'^»  "-^  «^«^   î 

«  m  force,  we  ar«  bound  to^^  Tt  «K  w**'  *"^  *^  T»*«tj 
wôr  on  treaoherv  and  fr*,,^.  "^-    We  can  look  with  t.« 

c»med  on  exo?^  ^  IriL!'  ^^^  co«ntenance  wSSJT  to  L 
^«Jt,u>tpermit,VAth?sKftL"^*"  civilka^ST  We 
»^ftt)miU«mT>torS««   ^S  o£  warhke  opeiAÉiSs  or  Aa 

Ml»  be    talrAn    m/ioi.   _L_A  . . 


», 


fti 
"*.) 


A  ^ 


yytiisa  "i^ntî.  *f&'  .i  «  ' 


II 


t 


ll'i  if! 


^ 


306 

reasons,  I  think  the  prisoner  must  be  remanded  on  the  warrant  of 
the  lea^ed  Recorder." 

And  for  the  same  reaaons  86  aiso  shoold  the  prisoners  hère  bc 
remanded,  unless  it  can  be  made  to  appear  that  we  hâve  one  sot  of 
neutrality  lawa  for  Ùpper  Canada,  and  ^other  and  a  totallv  dis- 
tinct set  for  Lower  Canada.  But  as  this  is  not  pretend'ed,  the 
judgment  in  the  Burley  case  disposes  of  the  question  at  issue  liere, 
unless  indeed  jour  Honor,  like  tiie  prisoners  counsel,  should  be  of 
opinion  thatyour  brother  Judges,— dwtinguished  as  they  undoubtedly 
are  for  judicial  attainments  of  Âe  highest  character, — ^have  in  the 
Burley  matter  misundeistood  the  law,  misapplied  the  facts,  and 
evidenced  gross  ignorance  of  our  intematiraial  relations,  a  con- 
clusion which  assuredly  does  not  flow  from  the  promises. 

With  thèse  remarks  on  the  Burley  case,  I  will  now  address  my- 
self  to  another  point  raised  by  the  msoners'  counsel,  which  I  un- 
dertdte  to  réfute  by  incontrovej^lle  authorilîy,  namely,  that  the 
prisoners  bemg  citizens  of  the  Southern  States,  had,  by  the  laws  of 
war,  a  right  to  regard  the  citizens  of  the  Northern  States,  with 
whom  they  are  at  war,  as  their  enemies,  and  as  such  to  put  them 
to  death,  wherever  or  whenever  they  could,  and  that  for  this  pur- 
pose  they  hâve  a  right  to  employ  ail  sorts  of  means.    «  A  strangc 
maxim  r   CVattel,  B.  3,  c.  8,  p.  357,)  "  but  happUv  exploded 
by  the  bare  ideas  of  honor,  confused  and  mdefinite  as  they  are.  In 
<ivil  Society,  I  bave  a  right  to  pumsh  a  slanderer— to  cause  mv 
property  to  be  restored  by  bim  who  unjustiy  detains  it  ;    but  shall 
the  means  be  indiffèrent?      Nations  may  do  themselves  justice, 
sword  in  hand,  when  otherwise  refused  to  them  ;    shall  it  be  in- 
diffèrent to  human  society  that  they  employ  odious  means.  (iWrf., 
B.  3,  c.  8,  p.  351.)  Women,  children,  feéble  old  mon,  sick  persons, 
comé  under  the  description  of  enemies,  and  we  bave  certain  rights 
over  them,  inasmuch  as  they  belong  to  tiie  nation  with  whom  we 
are  at  war.     But  tiiese  are  enenûes  who  make  no  résistance,  and 
consequently  we  bave  no  right  to  maltreat  tiieir  persons  or  use  any 
violence  against  tiiem,  mùch  less  to  take  away  tiieur  Uves.    This  i3 
80  plain  a  maxim  of  justice  and  humanity,  that  at  présent  every 
nation  in  the  least  degree  civilized  acquiesces  in  it.    The  like  may 
be  said  of  the  pubUc  ministers  of  reUçion,  of  men  of  letters,  jmd 
oiher  persons  who  live  remote  from  military  afl&irs.  (Was  not  St. 
Albans  remote  from  miUtary  affairs  ?)  At  présent  war  is  carned  on 
bv  regular  troops;  the  people,  tiie  peasants,  ihe  citizens  toke  no 
part  in  it,  and  generaUy  bave  notiiing  to  fear  from  the  sWord  of  the 
enemy.  (IbiéL,  p.  369).  I  givtf,then;  thename  oîasBasmnaUon  to 
atréaBberous  murder,  whether  tiie  perpetrators  ofthe  deed  be  sub- 
iects  ofthe  party  whom  we  cause  ton&ô  aasasanSted^  of  ouf" 
own  Sovereign.    Assassination  and  poisoning  are,  therefote,  con- 


sul 


,     * 


J^xJ^iSâ^  fc'UASéâsl* 


■^^f■■^ 


('î 


)  warrant  of 


807 

p'an^dtilTi^^^^^  ^iawofna- 

I  cannot  copolude  this  subject orXt  w«^'  ^^^<PP-  861, 862.) 

forget  that  oar  enemii  ^e^^^th^^^  ^J^'  J^^  ^  neveî 
mankind.    Thus  ghall  w!  ?î   ^^*"*^  ''^«^  connectB  us  with  ail 

hâve  advanced  is  sufficienfc  to  riJe  rid«f  if  iJ*'  ^^?->    ^»t  ^^ 
we  ought  to  observe,  even  in  Z  ^^f    /**  "".«ieratiou  which 

"^*^ceft^  -^-^e^^e  trytrunt^"'  "^  "«^«  - 

-n-rtht;ffiir^^^^^^^^  of  pnnisbing 

<^«  ^(^  <Aô  enemy  «nné^Zw/,!  ^''®'"**  ™J«-   -^W  damage 

not  tend  to  proi::7cZl^^à  S  T  1  ^''^^  «'*»«*^« 

The  pmageannXlto?to^fe  ":!:"•  ^^■^•' /  869:) 
détestable  on  eveiy  occasion  wtTfi!  ^'*  ^^  measures  odious  and 
absolute  necessitjTor  anTj  ;°  ^^^^  "!  P"*  ^  P^^co  with^t 
perpetrators  of  such  outiSuIZ^HT"*  u ''^'^-    ^"t  «  the 

themunderpretextof  SeSvtnt».^'^^^^^  ^  P*II«te 

obsenred,  that  the  natuS^d tC^«  the  eneinj,  be7here 

aUow  us  to  inflict  such  punii^te  e^JfT  ^^  "^'^^^^  ^oes  not 
against  the  làws  of  natioSs^  '   ^P*  ^^^  enonnous  offences 

no^'trho7â.e'^^^^^^^^  "can  undertake 

They  are  not  to  a^t  at^îhSr  ow^'i-  T'°'^^  «^  their  officers. 
respect  to  things  which  are  no^^nl^T^'?'  .^herefore,  wiA 
(soldiers  and  office^W  Lh  L        '^    ^  ''^'«'   *^'^ 

als,  who  are  not  to^dSke  ttV''"'''^!^^  *«  P"^»te  individu^ 

mtaiKse,  on  ni,re  ~„Z,|  SS?L>  "t^"*,'  P-  '•)    "  Tkus,  for 


■    '  '-il 


'  If 


Jï.uï. 


M 


I.         I 


>'i 


I 


f'.  i 


808 

BtructionXand  a  belligerent  is  bound  to  confine  himsetf  to  thoac 
modes  whi*h\he  common  practice  of  mankind  bas  employed,  and 
to  relinquWr  thoso  whioh  Ûie  Bame'  practice  bas  not  brou^t 
within  the  ordinary  exercise  of  war,  however  sanctioned.by  ite 
principlea  and  purposes.  (IWrf.,  p.  688.)  No  use  efforce  is  lawful, 
except  80  far  as  it  i?  neoessarjr.     A  belligerent  bas  tbetefoïe  no 
rigbt  to  ta^e  away  tbè  lives  of  those  subjects  of  tbe  eneipy  whom 
be  oan  sobdue  by  other  means.    Tbose  wbo  are  actually  in  arma, 
and  wbo  continue  to  resisl;;  mav  be  lawfully  killed  ;  but  the  inbabi-  -  ^  ; 
tants  of  the  enemy's  country..w}io  are  not  in  arma  may  not  be  slaio,  ^) 
because  tbeir  destruction  is  not  necessarv  for  obtaming  the  ju8t«*  ,tH 
ends  of  the  war.  [Was  the  asàwsination  of  Morison  at  St.  Albans  b/   j 
the  prisoners  necessarv  for  tbis  purpose  ?]     (Wheaton,  pp.  591  to  '\^  . 
604.)     AU  the  membets  of  the  enemy's  State  mav  lawMy  be 
treated  as  enemies  in  a  public  war  ;  but  it'does  not,  therefore,  fol- 
low  that  ail  thèse  enepies  may  be  lawfully  treated  alike.     No  use 
of  force  against  aii  enemy  is  lawful  unless  it  is  necessary  to  accom- 
plish  tbe  purposes  ôf  the  wai*.    The  persons  of  tbe  Sovereign  and 
bis  family,  the  members  of  the  civil  govemment,  woo»r and  child- 
ren,  cultivators  of  the  eartb,  artizans,  laborers,  mercSâmtê-,  men  of 
science  and  letters,  andi  generally  ail  other  public  or  private  indi- 
viduals  engaged  in  the  ordinary  civjl  pursuits  oflife,  are,  by  the 
custom  of  civilized  nations,  founded  upon  tbe  forégoing  principle,     , 
exempted  from  the   direct  effect  of  nùlitary  opérations,  unless 
actually  taken  in  arma,  or  guilty  of  sfflne  miscohduct  in  violation  of 
the  usages  of  war,  by  which  they  forfeit  tbeir  immunity.     Private    » 
property  on  land  is  aJso  exempt  from  confiscation,  with  the  exception 
of  such  as  may  become  booty  in  spécial  cases,  when  taken  from 
enemies  in  the  field  (iWi.,  p.  626).    The  effect  of  a  state  of  war 
lawfully  declared  to  exist  is  to  place  ail  the  subjects  of  each  belli- 
gerent power  in  a  state  of  mutual  hostility.     But  the  usage  of 
nations  bas  modified  this  maxim,  by  legdizing  sueh  acts  of  hostility 
only  a»  are  committed  hf  thoie  who  are  authorized  by  the  express 
or  implied  eommand  of  the  state.     Such  are  the  regularly  com- 
missioned  naval  and  military  forcés  of  the  nation.     The  horrors  of 
war  would  indeed  be  greatly  aggravated  if  every  indiyiduarof  the 
belligerent  states  was  allowed  to  plunder  and  slay  indiscriminately 
the  enemy's  subjects,  without  being  in  any  iffanne»  accountable 
for  hii  conduct.    Hence  it  is  that  in  Iwad  wars  irre^ar  banda  of 
marauders  are  liable  to  be  treated  as  lawless  banditti,  not  entitied 
to  the  prôteetion  of  the  nùtigated  usages  of  war  as  practised  by 
civilized  naticmâ." 

*''  War  (S  PluUimore,  p.  100,).  is  not  to  be  considered  as  an  m 
idttigenee  ^  bHnd^^iKt<ms,  btttag«arMtiif^ddibe»te^r««ota  ;  aiiàaj 
Lord  Bacon  says,  *nù  massacre  or  confuMon,  but  Ae  U^st  trial 


,.»;».,„,i^».,:;  ,„:««« 


L.t\-«>;;^.f,vV>Lis' 


/■ 


•>saJ  g 


809 


tenition  of^e  war     Th«  î    "'^"""^  prosecution  and  speedy 
decid«#m  tl,.^rf^  WM*re.     In  the  cage  of  Taliot  »».  Janim 

veré  ahv»w^^         ;  ,    confesa  the  firat  biaa  of  my  mind  waa 
^eiy  strong  m  fam  of  the  opinion  that  though  the  insSonsTf 


■  i' 'j 

■;'  Il 


«il 


•".'•''i 


.  '  ■<  fl 


-  ',  '    t 


■M 


_i<U 


5^ 


i^^^B^'P 

m 

I^^^^^E'    '' 

'^^^^^H    ' 

?. 

I^^Bii  ' 

^^^H 

■ 

1    "?,^v■ 


I 


810 

the  Executive  cpuld  not  pve  a  right,  they  might  yet  excuse  from 
damages.  I  iras  much  inclined  to  tlunk  that  a  distinction  ought  ta 
be  taken  between  aota  of  civil  and  those  of  tnilitary  oflScers  ;  and^. 
between  prooeedings  in  the  bîàdy  of  thejBOuntiy  apd  those  on  the 
hFgh  sela.  TÎiat  implicit  obédience  which  militwy  men  usually  wiy  s 
to  the  orders  -of  their  superiors,  vrhich  indeed  is  indi«pensably 
necessary  to  every  militaiy  System,  apîpeared  to  me  strongly  to 
imply  the  principle  that  those  orders,  if  not  to.do  a  prohibited  aet, 
ought  to  justify  the  pe^son  whose  gênerai  dutjf  it  is  to  obey  them, 
and  who.is  plaoed  by  tiie  laws  of  bis  country  in  a  situation  which 
in  gênerai  requires  that  he  should  .obey  them.  I  was  strongly  in- 
clined to  think,  that  Mrhere,  in  conséquence  of  orders  from  the 
legitimate  authority,  a  vessel  is  sèized  with  the  pure  intention,  the 
claim  of  the  injured  party  for  damages  wouJd  be  against  that 
(îovemment  from  which  the  orders  proceeded,  and  would  be  a  pro^ 
per  subject  for  négociation.  But  I  have'been  convinced  that  I  was 
mistakep,  and  I  bave  recedéd  frotp  tSiis  first  opinion.  I  acquiesce 
in  that  of  my  brethren,  which  is,  that  <Ae  instruction»  cannot  change 
the  nature  of  the  transaction,  or  legàlize  an  aet,  which,  without  thote 
instruction»,  wouid  hâve  been  a  ptain  tretpa»»." 

Thèse  authorities  I  confidently  submit  to  your  Honor's  judgment, 
and  in  réfutation  of  the  absurd  and  happilyLexploded  maxim,  that 
every  injury  inflicted  by  one  epemy  against  the  -person  of  another 
enemy  in  time  of  war,  and  under  pretence  of  war,  isjustifiable. 

The  next  case  to  which  I  shall  refer  is  that  of  McLeod,  so  muoh 
relied  on  by  my  leamed  friends,  and  with  it  I  intend  to  close  my 
observations  upon^this  branch  of  the  case. 

McLeod,  it  is  well  known',  was  arrested  in  the  State  of  New 
York,  in  the  mont^  of  Nqvember,  in"  the  year  1840,  because  of  his 
supposed  participation  in  the  destrucjdon  of  the  steamer  Caroline, 
and  the-ldlling  of  one  Durfee.  Now,  the  circumstances  under  which 
thèse  acts  were  committed  were  very  différent  indeed  from  those  which 
we  are  investigating^  Between  the  buming  of  the ,  Caroline,  the 
killing  of  Durfee,  and  the  robbery  of  Breck,  and  of  the  banks,  the 
murdér  of  Morrison,  and  the  wounding  of  several  other  persons  at 
St.  Albant  by  the  prisoners,  upon  tàxQ  19th  dav  of  Ootober  last,. 
there  is  not  the  least  analogy,  abipolutely  none  whatever.  The  de* 
stmction  of  the  Caroline  was  an  act  of  public  force,  done  by  thé  com- 
mand  of  the  Biitiah  Oovemment,  and  ail  that  McLeod  md  in  it,  if 
anything,  he  did  by  the  express  c<»imand  of  his  superior  officer,  and 
in  com|diAnoe  with'tiie  oraer  of  his  own  €k>yemment. 

The  Caroline  was  destroyed  hx  I^ember,  1887,  and  fi^m  the 
published  acooimts  of  aie  transaction^»w#  gather,  that  after  the  ré- 
bellion which,  durin^  ÛaA  year  Iwçi  brèten  ont,  had  been  suppres- 
^sedï  s>  nmik&iHkttdDf  €a&adiaa  reâigeii,  who  had  trftro  shdter  ia 


il 


1    ij-: 


fk 


'ii%â     1  ^ 


■.<;»•: 


J 


811 

tory,  pot  to  joîn  a  party  eZ^ï^i^  w^^i?  ^^  ^"."'*  *«"i- 
that  tîme  in  CttxM^Ttiire^l!^  ""V  r^'^l>«c»ufle  civil  war  at 

Britiah  territofy  the  Se  "  SC  o  *  ""  '*"**i  *°  «°°»°it  within 
some  daya'  DrenamHnn  rt^^        wbbeiy,  areon,  and  murder.    Aftar 

of  the  ice  in  wto  S/An  enol^'"^,,'*'^''*  ^"  «Sfat 
thej  had  used  her  for  thi  pur^  JîtST-"'-  *^*  ^"^  °^  B»<Wo, 
from  the  United  Stateg  tlïïK       ""«^«  *'^«'' *<>  ^avy  Island 
and  promions.    In  C0MeanT«^7'pT'  *™"'  ««munitioS,  bCs 
anthîrities  ^tationedTSî  fbLe  1?  ^K^'^^^^^^'  *^«  ««^«^ 
threatened  invasion,  andTdSnd  Z. V'ÎC''*'  **'  '«P*^  «»« 
conunander  of  that^  Lw^L?!^  MajesÇr'a  territoiyV  The 
means  qfmpplvamiJZ^^    fî.  *^!  (^^'«'otine  was  uwd  as  a 
pied  NÙT&yX^ZtZt^'^  ^Tîf"'  ^^^  ^-d  "ou- 
veesel  woJld  pwvjKÏÏlJf  J5' '^^r*^  *°^  destruction  of  that 
to  the  Island  and  wS'^ïf         remforcements  from  passin»  over 

of  the  metL^^4BSSv^^Z' b'^^^^ 

land.    AccordinX^5Z2th^fS''"\*'"??'7*°«»«°»ain. 

of  seven  smaD  bdte  înd  «î^k     ^°®'^^"'  1^^^'  «^  expédition 

conunand  of  Her  Mainaf^'a  V         ^<'^«>,  (who  was  lawfiJlyin 
vested  with  fiSlfit  to  i  ^^     a  *^"  ^'"^  "«^«^  P^^'e.  "d 
steamboatby  forcrwhTrEîr  ?     ^^  «"d  commanded  to  tate  thé  «Ud 
.    Bythi8expSn'I^SM.T   '^^ 
captured  iod  d?sCId  ÏJ?  .^^  T""  ^"«"S^' <l^«  OaroliZ^^ 

Plapned  an(fexecuted  b^^oi^TST^'*''  °^  *  f'^^"^  «^«^racter. 
t/s  Colonial  authSef  KÎ!î  1^  empowered  by  Her  Majesl 
^^WchmightbenecrM^^.^^'^^  steps  and  to  do  any  2te 

ries,  anTSr  1  ^SSof  c^  HefS^tv?"  ^J?*^'-  ^^^ 
consequently  those  subiecte  oî  iS!  iJ?^^.*^  ^  ^''*3««**  î  ««d  that 

t'an«Stian,VerpeS£,l^îofe^^.^"*  «ngaged  in  that 
•annot  be  made  wnS^LT-^-  of  pubhc  duty,  for  which  they 
and  tribj^  of^^^J'^^l}^^  a-we«bie  to  the  lawî 
,  Jq  thla  damant   a«u  -  Sr^iJ.      «y 


GoTernmentTKited^/S^^^^^^^^^^ 

"  Dtatee  entertams  no  doubt  that.  Aft«r 


*.■ 


I'., 


»     1 .' 


I 


iïHWiftf^i*  *iÂi 


■ 4Xu .V 


,> 


Ht' 


i  '•  ' 


1"^    Î 


'4 


■kir 


,at 


■'  :  t: 

'•■il 
I';!   I. 


312 

thia  avowal  of  the  transaction,  as  a  jpublic  transactioA,  auihorized 
and  undertaken  \>y  the  Britiah  authonties,  individuals  coneemed  in 
it  ought  not,  by  the  jirinciplea  of  t)ablic  law,  and  the  gênerai  usage 
of  ciyilized  states,  to  be  holden  perSonally  responmble  in  the  ordin- 
ary  tribunals  of  law,  for  their  participation  in  it;  and  the  Président 
présumes  that  it  can  hardly  be  necessary  to  say  that  the  American 
people,  not  distrustful  of  their  ability  to  redress  public  wrongs,  by 
pubbc  means,  cannot  désire  the  puiushment  of  individuals,  when  the 
act  complained  of  is  declared  to  hare  been  an  act  of  the  Government 
itself." 

Aâer  this  correspondence,  an  application  wto  made  fi>r  the 
release  of  McLeod,  supported  by  the  l»ir  officers  of  the  Government 
of  l^e  United  States  ;  but,  Juage  Cowen,  to  whom  it  was  made, 
refosed  it,  upon  the  ground,  that  the  avowal  of  McLeod's  aot  by 
the  British  Government,  did  not,  and  could  n^t,  legalixe  thàt  which 
according  to  his  views  was  a  crime,  before  its  avoiral.  He  held, 
moreover,  that,  an  iudictment  fâc  murder  having  been  retumed 
against  McLeod,  the  Court  could  not  by  the  récognition  of  the  Bri- 
tish Government  of  his  (McLeod's)  deeds,  be  onsted  of  its  jurisdic- 
tion  to  try  the  offence.  McLeod  was  therefore  brought  to  tnal,  and, 
after  a  full  hearing  of  the  case,  acquitted.  Subsequentiy  the  opinion 
of  Judge  Oowen  was  reyiewed  bï  Judge  Tallmadge,  (z6,  Wenddl, 
p.  66S,)  who  held  that' as  the  Britisbi  Government  had  not  only 
approved,  but  ordered  the  destruction  of  the  Caroline,  during  whiou 
Durfee  was  killed,  McLeod  was  not  individually  answenible  for 
the  conséquences  resulting  therefrom.  From  the  moment  that  it 
was  sanctioned  and  avowed  by  England,  it  becaiue  a  national  ques- 
tion, and  one  to  be  determined,  not  in  the  ordinary  munidpal  tri- 
bunals of  the  States  ;  but  in  the  high  political  Courts  of  Washing- 
ton and  St.  James. 

Where  then  is  the  analogj^  between  this  case  and  that  of  Toung 
and  his  accomj^ces?  MeLékod,  in  obédience  to  the  oommand  of 
his  superior  offioer,  performed,  a  soldierly  act,  one  which  was  déemed 
necessary  for  the  defence'qf^ûs  country,  and  which  was  approved 
by  his  Sover^n  ;  whereas  xbung  and  lus  aÉociates,  without  any 
authority,  pemrmed  the  very  contrarv  <^  a  mititaiy  act -^  one 
which  no  man  with  any  regard  for  tnith  can  prétend  was  justified 
by  tke  laws  of  self-defence  or  self-preservation.  McLeod  aided  in 
Hhe  destruction  of  a  steamer,  employed  in  oanying  aid  to  the  invar 
ders  of  his  countatr  ;  Young  and  his  party  devoted  themselves  V>  the 
robbery  and  murder  of  private  citizens.  And  yet  we  are  told  tivat 
there  is  great  analogy  between  both  aots — the  capture  of  th*  Gainh 
lifUi  and  the  raid  at  St.  Albans.  If  there  is,  I  am  oomp^ed  to 
"say,  I  do  not  seè  Q»e  resemblMicê.  " 

So  far  your  Honor  will  hâve  perceived  that  I  hâve  argued  the 


:  -ti^ss. 


,  .^ 


313  > 

«B.  Mr.  Laflamme,  itTtAe  itd^!  t^^^î""^  °"*«*«  t>«fore 
that  two  new  and  ii^wiLt  ft^J,  «  ^^  t^^^^  «^  yesterday, 
Honor's  iUness-A^ffîlal*!  Tf  ïr^^i^^dit  since  yoS 

upon  the  officeraSd ÏÏ^w  of the  ^^^^^^  '^// P"™°°«  ^^° ^^ 
sel.    Well,  mv  MBWArJfi,-       '«'^oke,  and  destroyed  that  ves- 

Adama,  that  there  wm  nnf  t^  •    .     -T®"  ^^^  ^  reply  to  Mr 

complained  ofT^d  Stt  S^S^  ? ^^°^^*^  '^«t^  *&«  P^r^ 
dalycommissiônedandenHfS*   1''°""'^^®'  <>f*e  paiK  wm 
Beâdes^Sr^Twaï  1 1^^^^^^     the  recog^tion  of  a  belIigW 
In  addition  towhlh  î  LTJS*^!*?"  ^*«  °^>«*  P«^ate  pOlage 
wide  «.otion  made  betïtrZd-*^'  gentleman  tt  the^  if  a 
-bet^een  the  Si  of  SlT''"l7'f^^  ^?  ^«^  "Po^land 
it  on  land.    Thel^^ln..    property  at  sea,  a^d  the  tSing  of 
ligerente,  when  ^  the^^e^^r^"^^^  Ï«H*^  ^^'  ^«^d,  f  el- 
Privilege^.  meaZ  r^S^^  ®*i'^  ^^î''  ^*^^  «^««J  righto  and 
-"  The  progre^  of  dSiS2;^n «f  aki^g of maritiie^warf^e, aa^: 

to  Boften  the^^l'^st^t^h'''^^^  lî^*  °^^**"%  *^°^d 
bat  it  8tiU  renS^iIl"y  .^'^  *^®  opérations  of  war  by  land  : 

which  thepriX^pZ^ofS/^'P^^*  to  maritime  y^^T^]^ 
port,  iB  mdlcriXSKble  to  o!;r^  ^''^  '^^Z^*  ^«^  ^a^ai  in 
ineqnaHty  in  the  opewtioi^f  fh^i''*P*T  *^^  confiscation.  This 
bas  been  justifiTKeli  S'  ^""^  ^'^^7*''  ^?  ï«>»d  and  by  se^ 
perty,  whin  ÏÏSi^d  in  dSl^t'^T  ?  ««^^^«ring  prfvate  prï- 
the  object  of  mSe  wSÏi!  ^'^  «'^stormas  boot?.*^  WherSj^ 
merce  and  naviSn  rt.f^  destaTiction  of  the  enemy's  oom 

which  objecrcXly'bt  atS'rtr ^!  '^  ^^  ^'^^  ^oZ, 
ofprivatiprtJrty.  ****'°«^  V  thé  capture  and  confiscation 

fi «^inal  int*ntrAr4*didït  8^  Ari*^'  Pngoners  jud 
th«  absurd  and  preDosterou»  Swîl     ^tv-*"»"»-    Now,  of  ail 


ntead  dobcsoT  S  S  i  i^  ^''^ "^^^^^ ^«^^  they  did 
^tter?  ShaU  iTEhi^' fc^L^' J^^^  <M  not  S  ^  4o 


notîntmid 


■1 

M  f 


h    > 


'If'V 


'  I'' 


'¥: 


^ 


# 


314 

cape  with  their  plunder,  that  they  did  not  know  what  they  were 
about  ?  Qan  it  be  believed  that  when  Young  and  his  partj  mardered 
Morrison,  shot  Huntingdon,  and  wounded  several  other  citizena  of 
St.  Albans,  they  had  no  criminal  intent?  Truly,  it  is  painfiil  to  be 
obliged  to  listen  to,  and  to  answer  such  unfounded  arguments  ;  but 
the  real  fact  is  (and  it  is  not  a  new  one),  that  it  would  seem  as  if 
we  met  hère  to  waste  time,  and,  as  I  hâve  before  stated,  to  trifle 
with,  instead  of  honestly  to  fulfil,  our  Treaty  engagements.  Young 
and  his  accomplices  had  no  criminal  intent  m  their  St.  Albans  ope- 
rations  !  If  tttis  be  true,  whv  is  it  that  up  to  this  hour  they  hâve 
not  made  restitution  ?  What  hâve  they  done  with  the  stolen  money  ? 
If  they  are  the  honest,  upright  men  ueir  Counsel  represent  them 
to  be,  they  ought  not  to  forget  the  favors  which  our  indulgent  citi- 
zens  daily  lavish-  upon  them.  They  should  not  oblige  us  to  pay 
their  debts.  Fifky  thousand  dollars— the  sum  voted  by  Parliament 
to  be  refunded  to  the  St.  Albans  banks,  in  lieu  of  the  amount,  a 
part  of  the  proceeds  of  their  robber^,  taken  from  Bennett  H.  Young 
&  Co.,  in  this  Province,  and  subsequently,  by  an  act  of  fi»ud,  re- 
stored  to  them — is  rather  too  much  to  pay  for  the  honor  of  theb  ac- 
quaintance.  No  writer,  says  Mr.  Laflamme,  bas  yet  ventured  to 
say  that  the  prisoners  should  be  extradited,  by  reason  of  the  crimes 
charged  a^inst  them.  Again,  I  sav,  he  is  mistaken.  With  very 
few  exceptions,  every  newspaper  published  upon  this  and  the  other 
side  of  the  Atlantic,  bas  denounced  the  savage  deeds  of  his  clients. 
For  instance,  the  London  Pott  (Government  organ,  Dec.  29),  in 
a  lengthy  article  upon  the  subject,  swrs  :— "  That  thèse  "raiders" 
really  corne  toitMn  the  terma  of  the  Extradition  Treaty,  there  can, 
we  coneeive,  be  no  manner  of  doubt  ;  although  an  attempt  was  made 
to  release  them  from  custody,  before  the  pretext  of  the  badness  of 
the  warrants  had  been  set  up,  on  the  ground  that  they  were  recog- 
nized  belligerents,  whereas  the  articles  of  the  Treaty  spoke  only  of 
ordinary  déprédations.  Sudi  a  pretence  will  not  hold  for  a  moment. 
The  Fédérais,,  indeed,  quite  as  much  as  ourselves,  hâve  reoognized. 
the  Confederates  to  be  belligerents,  and  they  bave  invariabfyao- 
knowledged  them  to  be  entitied  to  the  rights  of  war  as  against  the 
Fedends  tiiemselves  ;  hxO,  war  it  ordy  war  when  U  it  waged  either 
from  the  open  tea,  or  from  tcrritory  htlonging  to  the  attaoking  btU 
ligerentt.  If,  in  the  course  of  the  récent  Danish  war,  Prussians 
had  seoreted  themselves  on  the  shoree  of  Norfolk  with  the  view  of 
maUng  an  attack  npon  Jutland  ;  or,  vice  verta,  Danes  had  raoposed 
an  attack  upon  Prusdan  seaports  from  Yarmouth  or  Hall,  we 
should  oertainly  hâve  afrested  them  without  any  spécial  treaty  of 
extradition."^ 

jjondffn  Newa 


raid,  says  :— "  We  are 


Dbo.7,  reterrtng  tô  tfe  ^.  Albanie 
lund  to  abow  the  example  of  doing  as  w«t 


'^t 


315 

.till  *<«  bHliflSe  ;S  w.il^S."'  '"^  '  "^.""^^  ^ 

worda  •  «  W^  „    T  ^.        Çonduct  has  been  expressed  m  thèse 

tain  the  tranaSf^  «?  ♦?  T  _J  ^'^^J'*  executive  meaaures  to  mam- 
Stïî  iî^ff  ^     ,*^®  *^'^*"'  **7  *teir  own  poUce  and  by  the 

Ing  S  enomouf e^^tr^^ii'^i,'"™'"  complications,  mvolv- 
moi^oIh!d  to  ffL  ♦?    r*^"?*  .expéditions,  which  they  am 

vice  sr^^^^ 

i«?wyrW«u  «»TBr  give  a  free  and  lafÀ  «}.«U«,.  ^^  ^KJZrrsTT 


1;  ! 
Ml 


rw  n»y  De  tlieir  pnnciplos  or  their  cooÈtry,  but  the  fiwt  dut^ 


Iv 


1      *1 


T  '  , 


.sCf.i 


l-t'i 


^■sSs^îSfe4*Awlf<i^v' 


P  ;  I 


:     -1  iJ: 


[■)  '' 


.,*/ 


n 


316 

of  thèse  exifes  ia  to  respect  the  laws  and  neutrality  of  the  land  in 
which  they  seek  ftn  asyluin,  and  i^ot  to  attempt  to  drag  that  coun- 
try  into  war  for  a  cause  in  wWch  it  has  no  interest,  and  ^th  vhioh 
the  bulk  of  the  population  hâve  no  sympatlnr.  It  is  accordingly 
the  duty  of  the  Canadian  Executive  to  compel  the  Confederatea  to 
cease  thèse  exasperating  raids, -and  for  this  purpoee  to  place  tl^e 
necessary  force  at  the  frontier,  ^  to  take  suoh  otiier  measures  àa 
n^ay  be  requisite  to  maintain  the  neutrality  \rhich  the  nation  hàs 
unanimously  adopted.  It  will  bô  'better  to  do  this,  even  at  conmd- 
erable  expense,  than  to  run  the  i$3k  of  the  calamitiés  ^th  wUch  a 
répétition  of  such  raids  must  necessarily  tiireaten  the  proaperity  of 

the  colony."  .11. 

Thèse  extracts  from  leading  English  papers  mdicate  that  the 
people  of  England  hâve  not  much  sympathy  -with  the  St.  Albahs 
raiders.  At  any  rate,  as  this  case  is  not,  I  hope,  to  be  determined 
by  in-door  or  oiitrdoor  pressure,  I  irill  not  further  trespass  upon  the 
time  of  the  Court,  W  referrmg  to  what  has  been  said  or  written 
upon  the  subject  in  Canada  or  elsewhere. 

Before,  however,  closing  my  argument,  I  désire  to  bring  under 
your  Honor's  notice  the  fact,  that  during  last  November  an  attempt 
waa  made  by  a  few  Southern  men  to  bum  down  the  city  of  New 
York.     As  we  ail  know,  this  attempt  fiiiled.     But  had  it  succeeided, 
it  would  certainly  hâve  entwled  irréparable  loss  upon  the  people  of 
that  cit^.     In  fiMît,  it  would  hâve  proved  a  great  misfortune — a 
severe  blow  to  every  State  in  the  Union.    We  also  know  that  some 
of  the  persons  engaged  and  pledged  to  the  commission  of  this  dia- 
bolical  deed,  wère  arrested,  tried,  and  found  guilty  for  their  partici- 
pation in  it.    But,  notwithstanding  that  ûie  destruction  of  New 
York  would,  if  carried  out  according  to  the  plans  of  the  Southern 
incendiaries,  hâve  materially  affected  the  prestige,  if  not  to  a  certMn 
extent  the  resources  of  tibe  North,  I  hâve  yet  to  leam  iîhat  atiy  of 
thèse  prisoners  followed  the  example  of  the  St.  Albans  raidérë,  and 
set  up  as  a  justHIcation  of  their  cnme,  that  it  was  an  act  of  militaiy 
hostility,  and  one  which  by  the  laws  of  war  they  were  pennittod  to 
«ommit  against  their  enemy.    No,  the  truth  is,  it  was  dei^uneed 
eveiywhere,  and  in  no  place  more  ind^^nantiy  tiiaa  in  the  cantal 
of  the  rebellibùB  States.    But,  from  what  is  truispimg  sroima  us 
hère  in  Canada,  it  would  reaUy  seem,  that  if  the  New  Yotk  ittoto- 
<lianes  had  been  so  forta^ate  as  to  hâve  i«ftohed  Moi^al,  «ad  be 
hère  arrested,  tiieie  woàld  not  havé  been  found  wantihg  tiio$é  «ho 
wcrald  piodauQ.  them  belligerents,  entitied,  by  iàié  xtty  gréictnêis  «f 
tlièir  goilt,  to  be  xanked  unong  the  heroes  of  the  war.    Why  any 


of  tha  Uikited  States,  I  know  lioL    We  are,  aiid  miist  coniiaaè  «0 
be,  their  nèxt  door  neighbors.    Socially  and  commercially  we  are 


i  ' 


^  r.' 


ft.'ïr- 


./M.^y''Svi^^lM 


id  or  written 


317 

intimatelv  connected.    And  surely  ifr  ia  not  wise,  it  is  not  crudent 

fnend^v  ties  that  unité  us  to  the  great  RepubUc,  rud^W   n^ 
viûlenlfy,  to  tear  te  pièces  the  bond1,f  friendSûp  âa^hM  for  sJ 
mnj  yeara  secured  to  ps  the  blessings  of  peace  and  S  enU 
ment  of  an  uninterrupted.  reign  of  p^nC    I^seech  voS 

^«mW   •p'"''''**^^".  conséquence  of  the  prisoLrs'  dischS^e 
Kfemember,  if  you  set  them  at  liberty,  you  justifir    sTfar  a« 
Î^ÀSlr  ''  ^y^'^.Po^er,  the  ati^Ls^rirsTôitteS  a? 
fences     Discharge  those  prisoners,  and  othersVui  be  foundvdcked 

fSnC^PP'r-^^"?."*"'"""*  *^**  *^«  United  States  will  temely 
submit  to  see  theu-  citizens  on  the  froùtier,  robbed  and  muHlered 

tL^n  ^^/''^r^"^' ^"^S  from,  and  protected  TdorSe 
awB  of  Canada,  without  striking  a  blow  ?    Woidd  we  quietlv  submît 
t^l^r^^'  "^^'^  ^^'  cirx^Smstauces  ?    Suppre,^^! 
that  Irelai^  was  m  a  state  of  rebeUion  against  EÏSand,  ti^aTtwS 

fST-^"™«/*l  contmuance  had  mssed  thrAtSntirhS 

Bhot  down  our  citiwns,  and  then  fled  with  their  plunder  te  St 
Alba^     What,  I  ask,  would  the  law-abiding  peeS^of  cLda 

^  fl'^^îl^^'  ^IP^"^-'  ^^^'  *«  perpetrafors  of  tiiese  cSs 
copjulted  them  ^aiout  crimirial  intent^-that  the  stete  of  war 
ensbng  at  the  time  between  England  and  Ireland,  sanctified  their    > 

Î^^S^r^K**'  ""  S'  ''r'^  '^^"^'^  *«  ^  beUigerents  a^d 
ÎT*  1  ***xu*®y  murdered  and  robbed  the  good  people  of 
Montréal  m  the  name  of  rebelKous  Ireland,  ail  lirtherenL^ 
Stn^^L*^.'  Treatyneverhaving  contemplated  the  pi^veS 
of  such  gallant  and  patnotio  achievements.    Would  we,  I  ask  rest 

^CS^'  '*«*'?  '"*ï  abhorrence,  nay,  mth  the  most  profoind 
ZW\^*  P*^f  !.  *?^  *"  ^^«•^'y  <>f  *«  «o»"*^  who  enter-    . 
KZnn^'^'iï^  "^Tr^^  °*îi'''**  obligationa-w^  sanctioned 
Sî  SSf  T  '"***^^  '    ^  ''^"***  also  beg  to  remind  your  Honor 
^altiiough  vou  Jiave  suprême  control  over  this  apJUcation  for 


Igg'^-  It  my  be  uwid,  imd4Mi^_.»pMm»wH»y  «w,  mw^w 
J«Jg«  of  Cpaa^  are  removed  ftr  abovè  and  beyond  âu  Govern- 
ment mfluence,  whçrt  it  is  to  b«  d^youfly  hoped  th^  wUl  ever  Zl 


ii.!«*Ê  ^^  jf«\ 


rt 
If 


rr 


Mi 


s     '  ' 


'll(* 


■?''.', 


It*  '■• 


818/ 

/  --  .  •         ■       , 

always  remain.  But,  as  I  hâve  béfore  stated,  it  is,  and  I  say  it  in 
ail  humiliW^)  the  duty  of  tiie  Judge,  particularly  in  matters  affeot- 
ing  our  political^  relations  with/foreign  Statbs,  not  to  embarrass  the 
GK>vemment  by  an  unwise  jk  injucucibus  application  of  the  laws 
made  and  intended  'êb  ^tefieme  the  national  honor  and  the  gbod 
fiûth  of  the  citiiens.  I  biow  that  for  the  means  adopted  bj  the 
Législature  of  this  PrQmce  to  euard  against  a  répétition  from 
^win  our  lines,  of  St.  Albans  rai£i,  the  Oovemment  has  been  un- 
sparingly  abnsed.  But  do  not  the  aut^orities  which  I  hâve  had  the 
honor  to  ciiié — àuthopties  reco^pùzed  as  laws  binding  upon  ail  civi 


lized  nations — ^fullj/sustain  the  precautionary  measures  so  taken^ 
Nay,  I  venture  ta  go  a  step  furtner,  and  say  that  our  (Government 
is  entitled  to  the/éverlasting  gratitude  of  the  country,  for  the  prompt  ' 


And  efficient  means  they  bave  taken  to  ensure  tiie  mùntenance  of 
^ur  neutrality  laws,  and  the  mviolability  of  Canadian  territory. 

With  thèse  remarks  I  must  briAg  my  argument  to  a  close,  and 
leave  to  my  leamed  associâtes  the  commotion  of  the  task",  my  part 
of  which,  I  greatly  fear,  I  hâve. but  very  imperfectly  peîfonned. 
To  your  Honor's  sensé  of  justice^  I  commit  the  |  case  so  miri^  I  am 
concemed,  ezpecting  from  you  whose  judicial  attainments  are  of  00 
high  a  character,  a  judgment  that  will  reflect  honor  ùpon  ihe  judi- 
ciaiy  of  the  countiy,  and  redeem  us  firom  the  imputation  othaAig 
80  Mr  failed  to'^'fulWl  our  Treaty  engagements.  In  the  words  of 
the  eminent  Judge  Jay,  let  us  be  fùthful  to  ail — kind  to  ail — but 
let  us  be  ji^t  to  ourselves. 

March  22nd,  1865. 

Mr.  Bethune,  Q.  C,  (on  behalf  of  the  U.  S.  Government): — 

It  has  been  a  matter  of  much  surprise  to  m^elf,  and  I  havc 
no  doubt  has  been  so  also  to  your  Honor,  that  in  neither  of  the 
addresses  of  the  two  leamed  Counsel  who  hâve  spoken  on  behalf  of 
the  prisoners,  has  there  been  any  attempt  either  by  argument  or 
authority,  to  prove  that  what  was  done  on  the  occasion  hère  in 
question  wàs  i^  legitimate  act  of  war.  To  suppiy  the  place  of  such 
argument  or  autiiority,  we  hâve  been  favored  with  citations  from 
books,  to  the  effisot,  that  in  gênerai  it  is  lawful  for  one  belligerent 
nation  to  kill  members  of  the  other  belUgerent  nation,  and  to  seiie 
or  capture'  their  property,  and  with  the  assertion,  o^  repeated, 
that  in  àll  that  ocourred  at  St.  Albans  on  tiie  19th  of-Uotober  last, 
the  prisoners  acted  under  lawM  aûtfaorily.  In  the  absence  of 
guch  argument  or  aathority,  I  migbt  be  content  to  rest  this  branoh 


&e 


of  my  case,  ijplymg  <m  toe  wéàlnaM  of  n^Wv^e^^^jySt^WT 

counder  tlus  point  of  vital  importance  in  the  présent  discussion, 

and  as  I  am  resolved,  to  the  utmost  of  my  power,  to  strîp  the 


i.,,v<.\« 


319 

205,  wo.  120,  p.  205  ieo  m  î,  9?f     '  ^^S"''*''  «"'•  lï».  P- 

P-22*,  226,  L  ™'teTl l'A  ™'  M-  9?' fe''?' '~- '4' 
WBeaton,  pr  686.  591  tn  fini  ««^  a^S'    i; ,;  »,  ^^'  I^^ence's 

p.  412,  cL^18,^'c  8,  p  427  :S^f  tL^^^'^l.'^  ^î'  ^«.-  2, 
p.  46T  :-The  'case^f 'bUj  inVc'        ^^'  ^^  ^^^'  ^^  ^«•^' 

and  of  takbg  prZ^^^  ^theconquered  inhabitante, 

fortress  or  town     Vn/în  «ii  fu      **  °^  ^***^«'  <>''  "»  stonning  a 

onemiea  18  C  conCplaTd^^     *^^  "^  *'  '^™*«'  «^  *™«d 

who  happened  at  the  time  to  «f^w  J^'-   •      -.  "^^ividual  Breck, 
woiding  one  ma?  «J^/wr"'  *°i  «H^arged  their  fire  arm^ 

bernas  y^mî^'^Z":  "j/ ^'^^  *  ««^-^^ 

alleged  oommiaBion  ^w^t^^^    '     ,  ^  conséquence  of  the 

,     «  «CI  waa  (Wi^frM(r«iw;y  one  of  legitimate  warfere. 


,1% 


■  4i)^ 


•T.  I 


1%^ 


^^^^^Mjtiàfiii^jf^ù&i  ^Kil^i^.  ù 


h 


JÉL 


I 
IV" 

fi  ' 


!    t 


■«-      "'^ 


•■»  % 


v\ 


J     i 


-     î 


ii   > 


1, 


320 

To  mûntain  such  a  proposition,  however,  it  would  be  necessaiy 
th&t  the  commisùon  and  instractions  should,  at  the  least,  specin- 
cidly  authorize  the  commission  of  robbery  and  plunder.  Now,  in 
the  so-called  commission  of  Bennet  H.  Young,  he  is  merelj  noti- 
fied  of  his  appointment  as  a  lieutenant  in  the  proviâonal  army  of 
the  Conféderate  States,  and  in  the  three  letters  of  instruction,  or 
^hat  some  of  the  witnesses  called  détails,  of  the  same  date,  he  is 
merely  requested  to  organise  a  hody^f  men  ''  for  spécial  seryice," 
and  **  exécute  such  enterprises  "  as  might  be  indicated  to  him, 
eitherlby  C.  C.  Gl^y,  jun.,in  the  one  case,  or  Thompson  &  Clay  in 
the  other, — and,  i(n  the  alleged  instructions  from  Clay,  it  is  s'tated, 
that  he  is  authorized  to  act  in  conformity  with  a  suggestion  mad« 
by  himself  (Young),  "  for  a  raid  upon  accessible  towns  in  Ver- 
mont."  The  "spécial  service,"  "enterprises,"  and  "rwd"  hère 
refen^d  to  can  only  be  legally  held  to  mean  those  of  a  military 
character  and  such  as  are  recognized  in  modem  warfare,  and 
cannot,  by  any  ingenuiW  of  argument,  be  held  to  extend  to  the 
robboTy  and  plunder  of  banks  and  private  individuals.  But, 
/eyen  on  the  assumption  that  such  acts  as  robbery  and  plunder 
/  were  really  intended  to  be  included,  I  entirely  deny  the  power  of 
any  Government  to  authorize  such  acts,  and  challenge  my  leamed 
fnends  upon  the  other  side  to  cite  a  single  authority  to  support  so 
monstrous  a  proposition.  To  afford  them  an  opportunity  to  do  so, 
I  would  refer  your  Honor  to  their  favorite  author,  Lieber.  At 
pages  16  and  17  of  his  treatise  on  guérilla  parties,  he  says  : 
"  There  are  caaes-in  which  the  absence  of  a  unifolrm  may  be  taken 
as  very  serious  prima  fade  évidence  agfùnst  an  ànned  lurowler  or 
marauder.  *  *  *  It  makes  àgreat  di£^rence  whetiier  the  al^nce 
of  uniform  is  used  for  the  purpose  of  concealment  or  disguise,  in 
order  to  get  by  stoalth  within  the  lines  of  the  invader,  for  the  d^truo- 
tion  of  lue  or  property,or  fori^Uage.  *  *  *  Nor  can  it  be  Buûn- 
tained  in  good  faith,  or  with  any  respect  for  good  sensé  and  judg- 
ment,  that  an  individual — an  armed  prowler — shall  be  eqtitled  to 
the  protoctioh  of  the  laws  of  war,  *  *  because  his  govemment 
or  cmef  has  issued  a  proclamation,  by  which  he  calls  on  the  people 
to  infestée  biishes,  &c."  And  at  p^ges  84  and  85  of  the  "Trial 
of  John  X-  ^<B<^  "  ^^  ^1^4  ^  lettor  m>m  Dr.  Ideber,  of  date  the 
5th  of  February,  1865,  in  which  oocur  the  following  significa&i 
reiÀarics,  which  he  sàys  he  %onld  certainly  propose  to  ada  to  h» 
work  in  a  new  emtion  : 

I  *^  I  ought  alap  to  faavb  ^ven  sometitûng  on  enemie»  wko  intfi*^ 
guif^  omik  fr^  the  temiory  of  a  im^al  to  commit  rçUi^  or 
mmwTj  aààihose  yrih^  n>a|Y  coine  froni  such  territoiy  m  unî* 

term  RÀlDiits,  hâve  éoer  been  tret^ted,  qf  2j^  anjf  vriter. 


-5\\>         <jMÈs^ 


Â^^  it.Aïf  à.^t&iS^t-^^^!lti. 


;  fHj,. 


Si    ■  :'. 

Si 


^ 


#<rfe 


321 


18  considered  that  no  AtbLotv^J  .  raid  ;  but  wten  it 

that,  on  the  conw  the  p^te^'I-SV^'  '°  ^«  *^^ 
into  the  town  bj  t^  and  £s  Sw^f l  '""  ^°r*««  ««««^^ed 
there  to  steal  the  money  Tnd  hn^  ^^  '"^"^^^  ^°««  «««ugh 

&ejfectei  to  sec^mS^durinrfheTr^hï^^^^  any  of  the  priaoners 
a»at  Ae  expédition,  such  m  ?L«a  ï  «^«''^sojoum,  it  is  manifest  ' 
and  tiat  AdeT^d^hC^^  '"'''  ^  ^^^  o^«  object  in  view,  J 

i-2ScLt^:Sai?;'^^^^^^  --^on  and 

of  war,  and  that  such  an  auZrS/C^L  &' ««  ^J^'^'^  ^* 
tliat,4nasmuch  as  the  inatractionT «^  •  n  Wî  ^  ^^^  contend, 
of  the  neutral  territoryTSaSJ  «^„^i»^J^  P«>\Wted  any  vioktion 
ia  proved  to  hâve  b7en  brZSd  ^ST^-  ""  ^'  '"^^^^^n 
ceçded  thence,  by  waV  of  Cl!?  .  o  ^~^ce,  to  hâve  pro- 
returaedimmVdiatelytoclS;  ^5.°"'*°  St.  Albans,  and  to  hC 

therefore,  in  vSSS  ^f  ?h^ienZ™Sw^'  ï  T^"'  -^^ 
seuuentlv,  that  the  exnedîHnn^lIo     5   f^^^onty  mvoked  ;  and  con- 


::ii^^ 


>-l 


-A 
i-n 


-1 


Kl  :* 


•    ( 
f 


€k  ■  - 


m 


_l_...;.l 


le  ■■■'?' 


822 


\ 


from  the  càtegorjr  of  the  crime  of  robbery,  ifa  which  ît  st. 
/a<rie, installed.  The  argument  of  tay  leamed  friend,  Mr.  ___ — ,, 
that  the  fact  alone  of  Bennett  H.  Young  being  a  commiasioned 
officer,  and  of  the  other  brisonere  being  Confoderate  soldiets  (even 
torestttning  ihem  to  havS  been  such),  was  sufficient  authority,  ïb 
eûtirely  at  varianoe  with  the  well-recognized  principlèa  of  internUr 
tional  law  ;  and  is  comriletely  contradicted,  ndt  only  by  his  favorite 
author,  Dr.  lieber,  but  likewise  bv  another,  whose  work  he  cited\ 
at  page  248  :  I  refer  to  Lawrence^s  Wheaton,  and  specially  to  the 
foot^note  at  page  24»:  "  Where  persons  acting  under  a  commia- 
sion  from  one  of  the  belligerents,  make  a  capture  oatemibly  in  the 
right  of  war,  but  reàlly  with  the  design  of  rohbery,  they  will  be 
held  guilty  of  piracy."  It  is  manifest,  therefore,  under  any  hypo- 
thesis,  that  unless  the  spécial  instruction  invoked  amount  to  a 
positive  ordèr  to  c/)mmit  robbery  and  pillage,  the  prisoners  were 
àbsoltiUly  without  tawful  authority. 

I  now  propose  to  show  that  the  spécial  instruction  m  question  can 
liave.  no  légal  eflfect  whatever  in  the  présent  case.    In  the  first 
place,  it  is  to  be/noted,  that  it  is  to  the  lasu  degree  unofficial  and 
imanthentic  in  its  character,  and  is  not'proved  to  bave  been  written 
on  the  day  it  pttrports  to  bear  date,  a  fact  of  vital  importance  to  its 
légal  applicabnity  to  the  act  in  question,  especially  in  view  of  the 
évidence  of  ^r.  George  N.  Sanders,  which,  if  it  does  not  actually 
establish  thj^t  the  document  was  o^ly  written  in  the  eai-ly  part  of 
December  l^t  (long  after  the  nûd' was  OOmmitted),  at  least  tamts 
it  with  80  ffiuch  suspicion,  that  it^is  quite  out  of  the  power  of  your 
Honor  to/hold  m  the  absende  of /any  dh:ect  testimony  as  to  its  exist- 
ence in  Ôctober  last,  thaï  it  wlîs  executed  on  the  day  it  purports 
to  béar  date.    Mr.  Sfioders,  i|is  to  be  borne  in  mmd,  was  noton- 
ottsly  a  cqnfidential  agent  of /the  so  called  Confederate  Stat^and 
we  may  therefore  fwriy  présume,  that  in  the  conversation  IWftiad 
with  Mr.  Clay,  whèn  the  lî^ter  "  said  he  would  leave  such  a  letter 
as  tbe  paper  P"  (the  sjâeoial  instruction  in^uestion),  and  by 
Whicb  statettiént  Mr.  Sàmaert  adds  'Tinfer  it4iad  not  béenwritt&n 
upto  that  thnê,^*  Ur.  qKay  ^isclosed  ail  that  he  knew  in  favoror 
imtigfttïon  of  the  act  of  the  prisoners.    Tt  is  to  be  noted,  that  Mr. 
Clay  cai^My  abstaiiij^d  from  saying,  that  Young  had  bis  spécial 
fcttthority  in  wriiing  to  organize  and.  caftry  out  tlie  expeditiou  in 
duestion,  and  ttierely  stated  that  he  would  leàve  sùch  a  letter  as 
#oùld  establish  his  assumption  of  "  the  responsibility  bf  the  taid. 


ît  is  t^e,  that  ifhen  Mr.  Sanders'  attention  was  subsequently  ex- 
iflsly  caJled  by'Mr.  Laflamnie  to  the  dote  of  the  letter  P,  he  ^ves 

to  leftVe.    Àb  thé  date  was  long  antécédent  to  the  period  of  the  con- 
"♦^ttatibn,  tlâs  rtma*k  ôf  Mr.  Siuidért  was,  uttdèr  the  citcumstances, 


>    ï*"i^a&a?i?»!-. 


^■ 


pnsonere  were 


828 

inff  the  paper,  aa  ia  aoDaZt  Ll  fl  'f^,''®®»  pade  a/ter  examitr 
where  he  c&  to  pîJK  fiS'     a  P""^'""  °^  his  évidence 

orer,  to  which  Mr.  Clav  marlfl  ««?!•  ^''^  """^J"  ^«**«'-»  mort 

.duce  thia  document  whenhe  midi  LP"T'f'  ^""'^«'  ^'^''«^  *<>  Pr<v 
spécial  authority  under  ^iSrt  nïl  Jt".*^'^ '"*'"'"**'«°'  ««  tbe 
produced  at  a  late  stage  onlyoA^^^  "'*'  ^"^  *^**  '*  ^" 

Abbott,  one  of  the  Counseî  /L  L  P'^«'««4"»g«.  and  that  bj  Mr. 
Mr.  Cl^j  informed  Csoirtim^^^  ^'T^^  «-«^b 

no  other  letter  ia  produceT  the  le^  înf  '"'**  •*  ^*'>'  *»d  *hat 
that  the  letter  really  kept  bv  Mr  OU  T®  f  overwhelming, 

eonaeauently  that  {t  ffi  no  «IL?  ^  T  '^''  '*^°"™«»t  ?>  and 

19th.3ayo/octoberirt.    Theïtr^^^^^^^       ^''^T^  *«  *b« 
mymind  fatal  objection  to  this  hiSlv  •    ^Ï"''.T*'''"' ^'^d  ^ 
ïmrportfl  to  be,  in  the  fi^t  placé  a  fS^  l^"^""^  ^"°"™«°*-    I*  - 
lage  on  landU  SDecifi»  «f  nîl  '  •   •      '^  ^^  ""^'ï"®  ^  commit  pîl- 
ciâizedw(^ldTeXi^;X;««^^^  unheard  of^b 

claims  for  ito  writer  the  ex«r!ti  .7  ^"**?"  ""  *"  countrjr,-it 
territorial  jurisSrof  Gr^aTB2?n''T.^  ^'«^^  *he 
the  document  for  thes^  J;J«ni  .*  ?  ,°*  onlj,  however,  ia 
»  total  absence  of^Xjr,:;**'''^/^'"^'^'  but  there'  l 
Clay,  junior,  who  th^Sed  to  exIrlT  ^ï"*  ^''  ^'  ^' 
powers,  waa  gifted  or  clothS  wiïî  ^^^'^«^V"*!^  éxtraordinaiy 
the  GovermneTrn  4o8e  nal^  h«  T'  *?^^"^  whatever  iÇ 
oannot  be  seriouslv  coZnl?  >u  /^T®^  *°  *«*•  I*  «urely 
in  the  letter  oïï^tSL  si  J^fbî'^  Mr.  ClaJ 

timself  Seeretarv  at  wîToE  ,  ^,  ^"i'  ^^^^""^  (stylinj 
Poss^ed  of  «^suchT^orJ^^W  f^'T  ''  ^  ^«'°i 
does  not  and  ca^ot  legSTCw  Mr  S^  "l .P'"^  ^^'^  ^«'^^ 
he  assumes,  fo  the^Se  o?  ail  ^ff ^2°  ""u*^'  °®*''*^  «»Paoi*F 
Of  the  8oyereign<y«  eStence  S  'ecogmfaon  by  our  Goverùment 
Oonfederate  Ms  Z^!  *  Goremment  of  the  soKîaUod 

«»e  appCtlyîS^i>S.£fr°  T  ^"î!^  ^«"7  acoepr«a      ^ 
the  I?S7or  &fK^^tr..  ?  '"'^  C?*^erate  States.b 

ttorily  r^.  4r  whî^  Tï,  r^  .'^°*<'i«»ï  certificate  of  au- 
tàsj^y  .a':ShS  *»«*  Mr.^Clay 


Aj^^^-.lf^— "2glu?l   .  ""^ 


J 


Il    1 


;.-j-îa,' 


te  îi 


'>â«S&«V^^i8UVwo^  i>'*  "(.» 


\-~ 


>•>  • 


\h  ::t  <  . 


''«  Il  \:l' 


"X     V     ' 


< , 


.11'! 


T 


1  >       »'! 

lilf    11 


El  M 
'-  Il 


824 

States,  on  the  19th  day  of  October  last,  and  that  the  rest  of  the 
prisonere  were  on  that  day  soldiere,  owing  allejpance  to  those 
States,  and  bound  in  the  ordinary  dischargeSof  their  duty,  to  take 
part  in  the  expédition  in  question. 

The  document  produced  by  Young,  at  the  bme  of  his  voluntaty 
examinatîon,  and  which  he  calis  his  "  commission  as  First  Lieutenant 
in  the  Army  of  the  Confederate  States,"  is  a  mère  UUer,  signed 
by  Mr.  Seddon  as  Secretary  of  War,  ir^forming  him  that  the 
Président  hae  appointed  him  First  Lieutenant,  and  further  mformmg 
him,  that  should  the  Sbnate  at  their  next  Setsion  admae  and 
consent  therèto,  you  will  be  commissionbd  accordingly.  The  letter 
then  directs  him  to  communicate  to  the  War  Department,  through 
the  Adjutant  and  Inspecter  General'»  Office,  bjf  letter,  his  "  ac- 
ceptance  or  ^nraeeeptance  of  said  appointment,  and  mth  such 
letter  to  retum  to  the  Adjutaift  and  Inspector  General  the  oath 
herewith  endosed,  properly  filled^  up,  tviscribed,  and  ««««'«<'• 

This  dociinent,  at  beat,  is  a  mère  notification,  that  the  Freadent 
had  selectedYoung  for  the  post  of  a  Lieutenant,  and  neither  purports 
tô  be  nor  2m  be  considered  in  any  way  to  be  a  eommisnon;  the 
very  document  itself  announcing  that  such  commi»non  could  only 
immate  frfm  the  Sbnatb.  Then  can  it  be  said,  in  the  absence  of 
an  actual  bommission,  to  be  équivalent  to  one,  seemg  that  the 
Senate  was'not  at  that  time  in  Session ?— Had your  Honor  évidence 
■e  youi  that  the  appointment  had  been  accepUd  hjf  letter,  corn- 
'  ated  through  the  Adjutant  and  JnipeeUtr  QeneraV»  office, 
>at  wiih  such  letter  of  acceftance,  Young  had  transmitted  ta 
^«j  A&itant  and  Impector  Mènerai  the  oath  that  vas  endosed, 
propt^^fiUed  up,  wùscnbed  and  attested,  it  is  possible  that  this 
question  Vight  properly  be  answered  in  the  j^Srmative.  But,, 
unfortunately  for  the  baaeless  pretensions  of  the  defenoe,  although 
they  sent  a  spécial  messenger  to  Richmond  for  the  puiBOse  of 
'«obtoining  everything  that  was  ^'  neoessaiy  to  establish  the  bfiffigerent 
charaoter  of  the  prisonôrs,  and  that  thev  acted  under  orders,  who 
was  in  that  city  as  late  as  the  4th  of  Febr!aai7^.hi8t,  yet.that  messen- 
ger \ïho^  failed  to  procure  more  than  a  copy  of  the  above  letter, 
widofon0oftheletter8ofinstrttctionfromMr.Seddon,abreadyalladed 

to,  and  cppies  of  copies  of  certain  muster  rolls,  ail  certified  by  a  ûjr. 
Beniamin,  styling  himself  Secretary  of  War,  and  sealed  wilii  a  seal 
purportiàg  to  be  tiie  seal  of  the  jo-caUed  Confederate  States,  and 
whoUufmled  to  Mng  anu  document  ivhatever,  much  lettanj/aet 
of  confirmation  of  what  had  hem  done  at  St.  Albanêf  tigned  osr 
exemUd  eitker  hy  the  Shnatb  or  Thb  Pbbsidhiït  of  thèse  so^ed 
flbitoa.  \  Applyiag  then  the  well  known  manm  pf  l*w^— <to  ww 


apparertÊ^  et  nm  «BUtmtibuilMaëm  eté^romiXtieenagru  «uiu, 
u  u  ab«adia1fy  proved,  that  the  SmàTM  «tu  ml  in  usetan  whea 


je»<^a4^i^t.t  "*<?'-(      1*-.*  ^*;'>>ÏLÏ,> 


I  826  - 

the  mwmger  tvat  in  Rtchmovd,  and  had  been  so  ^nce  la»t  fin  ^ 

wntten  and  communicated  by  Younc  throuah  X  ^^^  7  *  ®I 
rnupector  eenenirs  nfRoA  tZf  Y  *,j:  ^  *"®  adjutant  and 
u«.jTO«*ur  gênerai  s  officej — that  no  oath  waa  ever  returnflH  ♦/.  ♦»,« 

adjutMit  and  inspector-Aieneral  by  Young  pr<^4î/S  ut^l/L 

SraATB,--and  that  both  the  Senatb  and  Thb  PREfln^vï   î  ;; 
fclined,  by  any  act of  theirs, to  J^fiZZ  r^ifyXiiZZ^l 
denommated  the  8t.  Albans'  raid.  ^  So  far'lZfore  X'ïi^ 
soner  Young  «  ooncemed,  he  acteff  clearly'  m^liawMlut- 

S^  AftTo^».^*  ''/®'"'*'  "^'"^  *«  "»«  altérations  SSt 

•    *nv  n?i       ?^  '''T  ^r"'°®°*«'  *o  aacertain  with  certaintv  tha* 

ÎÏLl  •7"T^''?  ^^j*  *^«  «^««Pti«°  «f  Marcus  Spurr)  are  the 

ïeav^Hutchinson  and  Spurr  were  ««ch  soldW  fnfm  th"  lOth 
of  September  to  the  Slat  Deoember,  1862'  There  ig  a  Lfll 
absence  of  proof  that  any  of  a,em  we',^  soldiers  o„  the  IGtK 

'r.l.^'^^1  ^^.^tu^fg  !!id  turr  Tn  tt^^ 
^  tt.18  affidavit  the  delay  is  asked  to  obtain  «  certain  istimoiï 

Me  unable  to  procure  jn  Montréal,  or  even  in  Canada  "  And  ît  iî 
al^stated,  that  such  testimony  w^uld  establish,  ^TkU  theL?^2 

^\^^'^î^  ^'  ^  '"'^"'^  ^^ instrueln^Z 

The  next  point  I  We  to  submit  is,  thj^t  ail  the  nrisoners  ar* 
^Jjtohave  resWed  inCanada  for  ma.  pre^ouf  T^nS^ 

hllf  1864  been  attending  the  University  of  Toronto  ;  thev  S 
t^ZT^  î.n8one«  ^m  Camp  Doùgli.    As  mattir^ 
g^^pnson^  by  mtiHng  Canada  ou  aoylum,  haJ  Oea^ed  t^S 
teS  ?Ji^î  '""TT*"  "*  *^«  expédition  started  frofa  neutraî 
temtoiy,  and iretomed  thèreto,  with  theirapoU,  immediately  ^r 


•«* 


■'^vî 


=**i 


W^k  hS-^ 


*    "4* 


■iêtâltS  ,  i 


^■s^fi 


II 


r 


■'■^■=Î5 


^v 


^    » 


r    > 

i 


I 


.   /•  326 

iis  accomplishment,  the  expedit&n  was  absoltOefy  unlawfuî,  and, 
under  any  circumstîuices,  created  a  forfeiture  of  the  nmtràl  pro- 
tection of  this  country.  On  thi»  point  I  vould  refer  your  Honor, 
to  the  following  authorities  :  WUdman,  page  [59]  ;  2  Azuni,  p. 
407  ;  Burlamaqui,  2  vol.,  pt.  4,  ch.  5  ;  Ai-t  19  ;  8  Phahij^ore,  p. 
227  ;  1  Kent,  pp.  117, 118, 119, 120, 121  ;  Lawrence's  Wheat«n, 
pp.  713  to  720,  incluBively,  and  p.  722  ;  HaUeck,  p.  517,  H,  oW, 
524, 531,  ^23,  629,  and  631  §4;  Historiens,  pp.  157  and  158; 
3  Wheat^n,  p.  448  ;  2  Ortolan,  Liv.  8,  ch.  8,  p.  261,  263,  265  ; 
2  Hautefeuille,  tit.  6,  sec.  2,  p.  46,  47,  49,  93,  95. 
The  fbllowing  are  some  of  the  doctrines  enunciated  m  theae 

authorities:  .         , ,.  .    j    .    -        7 

"  When  the  façt  (of  neutral  territory)  is  estahlished,  U  overrules 
every  other  comideration.'  The  capture  is  done  away  :  the  pro- 
perty  muêt  be  restoréd,  notwithstandmg  that  it  may  actually  belong 

to  the  enemy."  i  .      w       j  i. 

«  No  proximate.  acts  of  war  are  in  any  manner  to  be  allowed  to 
originale  on  neutral  ground." 

"  The  law  of  war  does  not  admit  that  the  temtory  of  a  neutral 
people  should  serve  as  an  ambuscade  for  one  of  the  belligerents,  to 
favor  his  opérations  of  war  to  the  détriment  of  the  other." 

«  Every  voluntary  entrance  into  neutral  territory,  with  hostile 
purposes,  is  absoluteîjf  unlawfuî." 

"  Troops  are  not  a  part  of  the  territory  of  the  nation  to  wmch 
they  belong,  nor  bas  their  flag  any  immumty  on  neutral  soil." 

«  The  party  committing  the  breach  of  neutràlity /or/aï*  the  neu- 
tral protection." 

"  Although  it  is  a  technical  rule  of  the  Prize  Courts,  that  tha 
captor  can  only  recognize  the  claim  of  the  neutral,  yet,  if  the  pro- 
perty  captured  in  violation  of  neutral  right^www  into  thepoaêes- 
.  êiôn  of  the  neutral  State,  it  is  the  right  and  duty  of  such  State  to 
rùtore  it  to  its  original  owners.  And  such  restitution  extends  to 
aU  captures  made  in  violation  of  neutral  rights."       %    .■ 

And  Historicus,  at  pages  157  and  158,  says,  that  this  latter 
remedy  can  be  claimed  by  the  belligerent  whoee  property  had  been 
captured,  and  may  be  "  exercised  over  property  or  persans  who  are 
at  the  time  within  the  neutral  jurisdiction.' 

I  now  corne  to  the  question  of  tireason,  which  was  raised  by  iny 
leamed  friend  Mr.  Kerr.  It  would  suffice  to  say,  that  the  pri^ 
oners  hâve  whoUy  failed  to  establish  that  the  crime  hère  committed 
was  that  of  treaaon.  And  if  they  had,  the  old  doctrine  of  merger 
which  is  hère  invoked  bas  long  since  exploded.  On  this  pomt,  I 
^ould  briefly  refer  to  th&  leadin&  caae  of  Begina  vs.  Button^  et.  al., 


II!  •■ 


1     u 


11  Ad.  ;  and  Ellis  N.  S.,  p.  929  aaïêêq.  AIso  to  lBi8hop,i549, 
660  and  661  ;  and  to  Wharton,  p.  256,  267,  768  and  769. 


'^4 


327 

of  law  that  «  every  sane  peraon  must  be  supposed  to  intend  ?hS 
wbçh  is  theordmary  and  natural  consequenceTws^^pitd 
act    18  too  weU  known  to  need  spécial  confirmation  CZBy 

In  bnnging  my  remarks  in  this  protracted  case  te  ?cbse  I L 
not  ^fram  from  again  urging  ,çon  jour  Honor,  that  the  Sy  si 
course  to  pursue  m  a  case  Uke  the  predent  is  toLu  iJTZ  ^ 

and  the  four  Judges  who  sat  in  the  Burlev  casp  thnTSv»     ?•     * 

vrown.  xie  saia . — it  was  mtimated  bv  tb#»  Cnn^t  «i.  J.^  •  ^^ 
.tage  of  tho»e  proooedtog,,  m  ZoZX  ^Za^^ 
a  question  cancemina  the  effeot  of  «.  *«!♦„  "*»»»«  omcerg,  uçoi^ 
Jofflobncy  of  ,„«„,:  a^;^,  ,*:2&t  t  '^7t 


Thi 

».  o..d«ctmg  «^  pro«.„«.„,„k™iSS^Sg!«';tnt^ 


.    ;  .-  M 


ÎY^'^il 


^r 


^^.a=l 


!  ' 


828 


•'Mu 


j  ' 


\ 


À 


:f 


■i. 


to  enquire,  what  may  be  the  notions  ehtertained  upon  this  point  by 

tho  prisoners,'!  feel  bound 


the  leamed  gentlemeû  who  appçar 

to  déclare  that  the  exercise  of  thatf  right  under  the  circumstances, 
seems  to  me  to-  involve  a  respon^bility  which  public  duty  will  not 
permit  me,  if  Icwould,  to  avoid/;  and  that  in  this,  as  in  ail  other 
proceedings  taken  under  the  express  authority  of  Canadian  Statute 
Law,  the  CroMm  is  acting,  and.  it  is  not  only  its  right,  but  its  clear 
and  inévitable  duty,  to  acjb^,'  under  a  direct  responsibility  to  the 
people  of  this  country,  for  the  manner  in  which  it  seeks  to  apply 
that  portion  of  the  chinai  law  of  the  lànd  which  concems  and 
régulâtes  Jiroceedings  of  this  imture.  I  ne  ver  could  clearly  under- 
stand  hovf  it  came  to  be  questioned,  even  in  the  excitement  of  the . 
earliest  stages  of  thèse  proceedings,  (and  to  judge  from  the 
remarks  on  that  head  made  by'my  learned  friend,  who  on  the  last 
occasion  of  your  Honor's  présence  hère,  was  the  first  to  address 
you  on  behalf  of  the  prisoners,)  how  it  continues  still  to  be  ques- 
tioned, that  the  Oovemment  of  this  country  bas  a  right  to  demand 
and  conte^d  for  the  exécution  of  its  own  municipal  laws  in  the 
Courts  of  Justice  in  Canada.  It  is  very  true  that  a  foreign  Gov- 
ernment ifl,  in  the  présent  case,  the  prosecutor,  or  more  correctly 
speaking,  the  complainant  ;  (for  in  strjctnesà  there  is  no  prosecu- 
tion  before  us)  ;  but  that  government  is  a  complainant  hère,  not 
for  thç  purpose  of  trial  and  conviction  ;  but  for  an  object  altogether 
preliminary,  and  strictly  defined  and  limited  by  the  laws  of  this 
country — the  object  of  ascertaining  whether  an  offence  of  a  certain 
description  bas  been  committed,  and  whether  there  is  probable 
cause  to  beUeve  that  the  prisoners  are  the  persons  who  committed 
it,  and,  as  a  légal  conséquence,  are  to  be  tried  for  it.  The  place  of 
tridl  is  not  an  élément  which  can  in  the  least  disturb  my  reasoning 
upon  this  point  of  the  case.  In  the  instance  of  our  own  subjects, 
charged  with  offences  against  our  owi\  laws,  our  obligation  to  com- 
mit for  trial,  where  we  hâve  the  preliminary  pfoof  the  law  requires, 
dépends  on  the  duty  of  protection  which  ail  governments  owe  to 
their  subjects.  In  the  case  of  crimes  committed  in  a  foreign  coun- 
try, towards  which,  we  are  under  treaty  obligations  to  surrender 
fugitives  from  justice,  the  duty  of  committing  in  the  form  pre- 
scribed  by  the  Statute,  dépends  of  course  upon  the  treaty  and  the 
laws  for  giving  it  effèct  ;  but  the  nature  and  object  of  the  enquiry 
are  the  same  essentially  in  both  cases  ;  are  directed  to  the  same 
essential  and  important  object  ;  are  controUed  by  the  same  gênerai 
rules  ;  and  finally  resuit  in  the  same  important  end,  viz.,  the  trial 
in  the  country  which  ha»  cognizance  of  the  offence^  of  the  guilt  or 
jnnocencej  of  the  party  accused.  I  hâve  heard  muoh  loose  talk; 
of  still  '  looser  notions  about  neutrality,  hazarded  on 


Buggestive  of  still  looser  nouons  aoout  nei 

behalf  of  men  who  may  perhaps  be  found,  on  examination  by  and 


329 

on  the  other    dTare  S^^n^rhi?Kr  ^"«°<1« 

the  narf  nf  th^     •  vioiating  the  obligations  of  neutrals  bv  takinff 

partes  SmlSwPrJ^^''™  *'«»""«<'■  •»  iwest  suspected 
General  and  MariIL.?«   k  '"""«benl,  not  only  upon  Attomies 

woddhave£ïLSi*ll*^  ^0^  the  authorities 

or  enquinr,  Aa^this  knot  „ïïn   ^^^  presuming,  without  examination 

warlike  e:ro^oît  Sless^t  An  S^'^^^T^  '?"^'°S  ^^^^  *  la^f'J 

pocketeŒd  Td<i  stî  L  iZ  !'^^?^^^  young  men,  with  their 
Sud,  and  bestridS  bar^S^^'  ^""^  *H"«eIves  bespattered*  with 
ing  in  hot  ruraîT^nZln^^^^^^  hprses  whose  owners  Vere  scream- 
ï?atdXSroïted^W  tt^^K^^  «'S°«<>f  a  militarjre- 

the  Goveilent  thi^        ''^''^''^  °^*^«  ^'^'J^-    The  action  of 


SWof dutylndlhEîln  •    .  '''"/i.  l* ^'^ ^^»* *»»« ««"«non 
«m  mej  oïd,  or  had  done  it  m  any  other  nianner,  they  woulS 


<. 


f 


*>   -.M 


V      i     { 


\       1     PI   i    4t\ 


'■/Ail*" 


tâ^  V'^^'-r'^^-  »^' 


i     \ 


ji 


m 


'îir 

•r 


880 


justly  hâve  been  amenable  to  the  reproacb  of  indifierenoe,  not  ody 
to  the  ÎTaith  of  treaties,  but-  to  the  commonest  obligation  of  duty 
towards  the  people  of  this  country.    If,  may  it  pleasé  the  Court, 
this  case  seemed  to  me  to  oflfer  any  occasion,  for  forenaio  display,  or 
in  any  possible  aspect  of  it,  either  in  what  bas  hitherto  wîcurred,  or 
may  hereafter  take  place,  it  could  afford  any  groiUid  for  tnumph, 
or  even  of  satisfaction,  I  sbould  be.  deterre(j[  from  attemptmg  the 
one^  by  the  récent  and  still  reverberating  efforts  and  advocacy  of 
the  able  and  eamest  men  who  bave  prisceded  me  ;  and  sbould  be 
"  at  once  prevènted  from  indulgmg  in  anything  like  the  other,  by  the 
reflection  that,  in  à  C?madian  Court  of  Justice,  there  w,  and  tbere 
ought  to  be,  no  possible  triumph  but  the  triumph  of  tjruth  ;  and  m 
any  possible  issue  of  this  enquirjr,  there  must  pf  necessity  reinam 
regret  and  anxiety  on'  one  side  or  on  the  o&ep.    On  the  side  of 
those  Vho  complain,  if  it  be  found  that  our  laws  are  powerleœ,  to 
rive  effect  to  treaty  obligations  ;  on  the  side  ôf  the  accused,  if, 
awaking  suddenly  to  their  true  position  m  this  mopt  grave  transac- 
tion, they  sbould  at  last  find  that  human  laws  are  not  plaything»^ 
that  the  obUgations  of  nations  are  not  trifles,  and  thi^t  in  applymg 
to  their  conduct  th Aurest  principles  of  law,  and.  the  most  unr 
doubted  and  settled  rules  of  its  admmistration  in  like  instances, 
the  color  they  bave  endeavored  to  âve  their  acts,  fades  away  at 
once  in  the  Ught  of  fair  enc[uiry  and  considération,  and  that  the 
Btemest  aspect  of  ériminal  justice  is  alone  suited  to  thei?  case. 
Any  topics  of  discussSm  that  can  possibly  arise  hère,  before  your 
Honor,  in  the  investigation  of  this  complaint,  confined  as  it  is  by 
law,  to  a  prelinûnary  enauiry,  whetherûiere  is  ground  to  commît 
for  trial,  can  only  be  treated,  as  I  understand  the  subject,  under 
three  heads.    First,  the  complaint.    Secondly,  the  answer  to  it  ; 
and  Thirdly,  the  nature  and  légal  limite  of  your  power.    I  under- 
stand the  cause  of  this  enquiry  to  bave  been  regulated  by  yonr 
Honor's  expressed  désire,  that  ail  the  facte  of  the  case, — ail  that  the 
prisoners  could  reasonably  coutend  to  bave  any  bearing  on  it  wbat- 
ever,  sbould  be  laid  before  you,  in  order  that  you  might  bave  ail 
that  could  poôsibly  be  advanced,  as  well  by  way  of  évidence,  as  of 
argument,  m  view,  before  pronouncing  on  the  légal  eflfect  of  any- 
thing  that  bas  been  brought  forward.    This  owrse,  dictated  prô- 
bably  by  a  jùst  regard  for  the  righte  of  the  parties  coneerned,  9M 
certaiiày  evincmg  an  indulgent  and  hupiane  (^ntion  which  I  shaU 
be  the  last  person  to  deprecate,  bas  left  open  for  discnswon  att 
thèse  questiww,  as  nothing  bas  theréby  been  deâded,  or  intimated, 
.  as  to  àe  légal  effect  of  such  évidence,  or  more  properly  e^>eakin& 
tiiiflb  informai  information  bjr  way  of  évidence,  M  ÏM  bë»n  la^ 


before  your  Honor. 
Upon  the  first  point  that  I  hâve  suggestod  as  prop^r  for  ai»- 


^ 


't^ 


ta  '  - 

cn«8ion  hère,  there  is-little,  I  inay  Baynothing  whatever  to  be 
obBepred.  ^  The  charge  of  robbery,  aad  the  direct  participation 
ip  it  ot  ail  the  pnsoners,  as  weU  as  of  some  others  not  now 
betore  usj  it  was  of  course  the  duty  of  the  complainant  to  es- 
tablish  |o  the  extent  required  by  our  own  laws,  m  order  to  justify 
itcommitment  for  trial,  if  the  case  had  occurred  hère.    That  thîa 
has  been  done  is  uncontested,  and  indéed  incontestibleif  and  no 
question  has  been  raised  oY  even  sttggested,  that,  but  for  the 
exculpatory  testimony  adduced  on.  behalf  of  the  accused,  they 
must  be  committed.    If  any  such  pretension  could  hâve  been 
'   ™'  u  '      u^  "^*  ^  ^  doubted  that,  at  the  proper  time,  namely 
— when  the  évidence  for  the  complainant  was  over,  ma  before 
applying  for  and.  obtaininga  moûth's  delay  tô  |)rocure  witnessea 
m  exculpation,  the  able  and  astute  counsel  who  represent  the  pri- 
Boners  would  not  hâve  faUed  to  discharge  their  duty  in  that  respect. 
We  corne  then  at  once  to  the  considération  of  the  second  point. 
^  What  is  the  answer  or  defence  of  the  accused  to  the  charge  thus 
avowedlyprove'd  against  them,  and  by  what  proof  and  what  support 
m  law,  18  it  attempted  to  be  sustaiiied  ?   Their  answer, I  take  tobe, 
m  substance,  this.    The  act  that  you,  the  complirinant  liave  proved 
we  cannot  deny  the  fact,  is  there  ;  but  tiie  chaiicter  that  bêlons 
to  that  act  18  not  of  the  description  that  you  contend  for.  '  You.5Jy 
w  !*ii    ^  *^""^*  ^^  nfpnicipal  laws  of  the  State  of  Vènûont, 
We  teU  you  it  was  lawful  wa*. ,   You  clahn  to  treat  us  as  criminUs  ; 
we  aver  that  we  are  soldiers,  and  that  in  what  we  did  we  aiîted  aa 
belligerents,  and  under  lawful  «uthority .    This  answer  undoubtedly 
opens  a  wide  field  of  examination,  as  well  of  thç  law  afifectmg  such 
cases,  as  of  the  particular  fa«ts  that  ârise  m  this.   I  think,  however» 
that  the  great  expansion,  or  subdivision  of  propositions,  which  hâve 
been  adopted  on  the  other  side,n»ay  be  advantagçously  cômpressed, 
and  restncted  to  the  considération  of  this  answer,  bi-explanation,  or 
whatever  wè  may  call  it,  under  two  headà.  .  Firôt,  is  ît  war,  open 
and  visible,  m^  its   ej^mal   characteristio,  and  ite  presumptive 
appearapce  ?   And,  second,  is  it  war,  whether  appawntfy  âo  or  not, 
r^  S     A  P^*^*^  circumstances  that  hâve  Jjeen  laid  before  the 
Lourt.    As  far  as  extemal  appearances  are  concemed,  to  conclud© 
only  trom  what  was  desqribed  to  us  by  the  eye-witneaaes  of  this 
prwîeeding,  that  it  was  a  warlike  opération  niay,  I  tUnk,  be  fairlj» 
said  to  be  impossible.    If  common  sensé  were  not  quité  a  sufficient 
mude,  by  i^elf,  to  conduct  us  to  this  conclusion,  tEe  authorities 
already  cited  by  my  leamed  friend  Mr.  Betiiune  are  upon  this  point 
K«T'-  A  U^h  ^*'*^'.  ^^"^«'  ï'^^"^  WcSls^y,  ient, 


-iron  rach  a  point  as'  thîs,  may  safely  be  deemedsScientauS 
nty,  to  guide  us  to  the  décision  of  what  is,  and  whaj;  »  not,  consid 


'\ 


^"  ';  V 


M. 


■  il 


* 


f   t 


r'»'  ■ 


,.,j. 


■  ^  • 


.1. 


*    .•.■.I' 


\  4. 


1 


i  ♦•     i' 


1 1' 


S 


^W" 


-^ 


882 


ered  upon  gênerai  principles  to^lie  an  act  of  war.  One  of  the 
learned  counsel  has,  however,  upon  this  part  of  the  case  offerèd 
Bome  lengthy  observations  upon  the  doctrine  of  intent.  With  that 
«Rtetrine  every  Itae,  I  take  it,  who  has  practised  in  Criminal  Courts, 
must  be  supposed  ta  be  tolerably  conversant.  The  most  obvions 
and  easïly  applied  rule  upon  ihat  subject,  I  will  taHe,the  liberty  of 

Ïuoting  from  one  of  the  most  familiar  criminal  books,  Archbçld^s 
îriminal  Practice  and  Keading,  1  vol.  p.  392.    I  quote  from  tfce 
latest  édition  of  Archbold  in  two  volumes,  with  Waterman's  notés  : 
"  Another  mode  of  judging  of  the  intent  is  %  "presuming  that  Ith^ 
"  party  intended  that  which  he  effeoted,  or  that  which  is  the  natilral 
"  conséquence  of  the  act  with  wHch  heis  charged.    If  the  nat^ral 
"  conséquence  of  his  act  would  be  the  death  of  another,  a  jury  mm 
«  fairly  tnfer  from  the  act  that  it  waa  done  with  intent  to  kijl.    If 
"  the  natural  conséquence  would  be  to  defraud  another,  a  jury  may 
"  fairly  infer  an  intent  to  defraud."   Now  let  us  apply  this  compon 
and  obvions  doctrine  to  the  case  before  us,  or  rather  to  that  parti- 
cular  par£  of  it  I  am  now  discussing.     What  is  the  natural  conse 
quence  of  robbing  Mr.  Breck  ?   Is  it  that  the  national  power  of  the 
United  States  is  prostrated,  or  in  the  remotest  manner  afifectqd  by 
it.    The  natural  conséquence  is  that  Mr.  Breck  loses  his  money  ; 
but  it  requires  a  great  deal  of  imagination  to  conçoive,  and  a  good 
deal  of  ingenuity  to  explain,  how  that  fact  tended  to  exhaust  the 
national  resources,  or  attack  in  any  manner  the  national  existence. 
In  touching  upon  this  part  of  the  case  it  is  impossible  not  to  feel  the 
Ijiecessity  of  imposing  some  lirait  to  what  may,  with  any  appearance 
of  reaaon,  be  alleged  to  be  an  act  of  war.    If  thèse  prisoners, 
instead  of  using  violence  and  terror  to  get  this  poor  old  man's 
money,  had  used  stratagem  ;  in  other  words,  if  instead  of  openly 
robbing  him,  they  had  picked  his  pocket,  woidd  that  be  dontended 
to  be  an  act  of  war  too  ?    I  must.  suppose  fronl  the  course  of  the 
argument  on  the  other  side,  that  it  wonld  be  held  ;  and  indeed  it 
n>u8t  he  so  held,  there  can  be  no  doubt,  if  _  the  act  taken  by 
itself,  or  merely  accompanied  by  the  déclaration  of  th©  thieves, 
thali    they,  as    Confederate  soldiers,   can   be    held   to    confer 
upon  the  actors  the  conclusive  character  of  persons  perfonning  a 
lawful  warlike  exploit.    The  troth  is  that,  though  ail  authorities 
denouncé  it,  the  practice  of  takmg  private  properly  in  war,  orof 
inflicting  ùnnecessary  injury  upbn  unarmed  and  inofFensive  indin- 
duals,  is  a  practice  (and  that  ib  the  utmost  that  can  be  said  for  it) 
that  may  be  admitted  to  have'been  in  some  cases,  an  incident  and 
a  forbidden  incident  of  war  ;  but  it  is  not,  and  never  with  reason 
caab»^ontende4.igLbe,^aaactQf  warLin_it8  Qgnnatnre.    Ijp,t 


from  some  part  oÎT  the  testimonv — I  forget  whetber  it  was  m  Ûàa 
caae  of  Breck,  or  in  some  of  the  previoiis  proceedmgs — that  there 


I 


,    •b>-.,c^,aL•tflÀ^^« 


833 

wa»,  àt  or  near  St.  Albans,  an  arsenal,  or  somel  auch  national 
Btruoturo  and  m  the  town  itself,  one  and  Jnly  one,  Joldier.  S 
Wtunitiea  of  glory  and  destruction  aref  howeS^r?  Llecte^ 

and  poor  old  Mr.  Breck  is  nmde,  to  p%  a  part 'm  the  histZ'  of 
modem  war,which  must  hâve  surprisecî  him  quite  sa  muchZ  it 

«r^Ul  tir""^*!  '^^'''"*  ^^°*^°°«  ^f  ^«^^^  achievemeite  and 
marual  glonr.    I  will  not  stop  no^  to  discuss  very  minutely  the 

TantZnt^'  .°^  *^"  ^'*™'" .documents  that  hâve  been  put 

f  oZ«  1 1  1*^'  P^r ^-   ^^^^^  ï«g^  «ff««*  I  «hall  notice  when 

I  corne  to  another  part  of  the  case.    The  question,  too,  of  wbether 

^ttese  documenta  prove  anvthing  at  aU  ;  whether  Young  canTunder 

tt^e  («rcumatjuiceg  contencîed  for,  be  considered  to  have^held  a  com- 

S^«:r«TS?'  ^^l  "^T  *T  P"«^^«"«  *o  *his  outrage,  had  really 
CT  ^'  '^^^'',"  °^  ^^^«^  «"PP««i°g  them  l  hâve  haâ 
that  characjer  previously,  and  can  be  coSideïed  to  hâve  been  so ' 

Z:^.;f  ^-«I^^Tt"'^*  *^«  *^°^«  thisoflènce  wascomïïted;' 

oLrnr/n*  T  5"^""*^  ""H  ^  ^''^^^^  ^«^  ^^  United  Statos 
A^LTT     :   ^°  i',°*'*'.®  "^"^  ""^  *^««^'  °^îght  perhaps  be  said  to  be 

J^reï&de'T'/j*'-  V^ybésofanîyet'the  nécessitiez 
ana  exactitude  of  légal  proceedings  may  require  it.  What  indepd 
J«^e  the  nomts  unon  which  aU  thfceleLted  modem  c^s^  ex- 
faction  Êave  atlaat  tumed,  except  pointe  of  the  narrowest  ",ld 
f«t  .^t'ï"";?^  description  ?   Take  BisSett's  case  ;  take  A^d^Ws 

EtothVi;^fTST'L*^î^«^P«^«'  ôr  corne  doZS5 
fi«SLM      "5®  fJ^^  ^®f"*y-    ^I^'»  ^hat  pointe  were  they  ail 

-5^^Î?J^  defecte-wbeh  may  ahnost  be  caUed  clérical  defectà     ' 
-^  the  warrante  ofcommitment  ;  and  the  last  uponthe  not  much 

particular  kmd  of  piracy  mtended  by  the  treaty.   I  feel,  however 

ttiat  the  idea  of  tbs  enterprise  presenting  in  iteelf  any  aign  of  lâw- 

W«  Z'  "  ,?ï'"!?^l'  r  ""'"^'^y  ««w^anted  b^Sie Tvidencr 
.  We  hâve  alT  heard,  both  in  fable  and  m  hiatory;  of  LtZes  of 

IZ  S  th^ri'S'*  *^'  ^  î**  endeavored  to  détend  ite  Zel 
ttons  to  thoae  of  the  ox.  We^have  read,  too,  in  modem  hiatorv  of 
t.w1^  Tooley  Street,  who  caUed  the'maelvrAe  3  of 
]N;^d,  aod  proceeded  toiJt^r  the  mnntitution  of  tho  og  ;-^ 

pretence  that,  m  gomg  to  a  bank,  in  the  aiddle  of  the  day»  i 


ma 


m 


h  '>'h 


.    -V. '.:;•,! 


■M 


iWll* 


i 


1    .  i!)».         , 


^AoV  . 


\, 


-^ 


iit>. 


<t' 


*»">! 


8«4 

Eeaoeable  village,  and  easing  an  old  gentleàian  of  two  or  threé 
andred  dollars  on  the  threshold,  the  prisoners  can  be  presumed, 
or  believed  to  hâve  acted  as  a  military  force — having  lawful  au- 
thority  from  a  bnwe  and  civilized  people  to  do  what  they  did.  We 
must  remember,  too,  that  vre  are  hère  dealing  iirith.a  question  of 
proof,  and  not  of  présomption.  It  will  not  be  presumed  that  Trar 
was  being  made  a  thousand  miles  from  i^  seat  of  actual  hostilities. 
We  must  hâve  proof*— certain  and  undonbted  proof — to  take  away 
the  crinànal  nature  of  the  act,  before  we  can  say  there  is  nothing 
left  for  a  jury  to  try.  The  black  color,  so  to  speak,  of  the  offence 
impristed^;  must  be  oompletely  washed  âway  before  we  can  refuse 
légal  efiSsct  to  the  oomplaint  that  is  supported  aâ  far  as  the  law  re- 
quires.  >  ' 

I  oome  now  to  the  second  an4,  i^o^t  important  question  ailismg 
«nder  ihis  head  of  enqoiry.  The  idea  that  i^e  apt  complàined 
of  presented  in  itself  any  of  t^e  oharacteristics  of  lawfuii  war 
havmg  been  disppsed  of,  there  remains  the  very  important  consid- 
ération how  far  Ùie  pecu^iar  circuinstances  proved  on  the  prison- 
ers' behalf  tend  to  give  \t  that  ch&racter;.and,whether,%deed, 
the  diroumstanoes  60  çstablished,  (|o  net  oonclunvely  depivé  the, 
enterprise;  of  any  posâble  belligerent  ohuticter,  that  mi^t  other- 
wise  hâve  been  contended  for.  It  is  not  to  be  expected  that  the 
Govermaent  of  ^is  coontry  can  viéw  with  mdi%rence,  the  fact  so 
dearly  eatt^>lished.  by  the  defence,  and  the  évidence  m  rebuttal, 
that  this  enterpriie  reçeived  its  pretended  authority  within  this 
i  Province,  and  prooeeded  ^reotiy  from  our  fhmtiçr  to  St.  Albans 
by  tiie  ordinainr  Une  bf  railway.  The  authoHty  put  forward  is  the 
autiiority  olMe.  Glay.  The  date  of  that  authority,  as  fi^  as  it  can 
go  for  anything,  amwars  on  the  âtce  of  the  document  itself  to 
De  6th  OeCeber,  1864.'  It  is  directlr  proved  by  two  witoesses 
brou^t  up  by  tiie  prisoners,  vis.,  Mr.  Saaders  and  Mr.  Clay,*^ 
that  Mr.  Gayresidea  in  Canada  from  June  to  Deoember  of  thi^t 
jrear  ;  and  firom  other  parâcultos  mentioned  by  thèse  two  witnesses; 
Il  ia  abundantly  évident  that  Mr.  €lay,  thongh  for  obvions  rèaeons, 
tiie  place  has  been  otoitted  to  be  named,  in  the  way  usually  prac- 
iàed  in  èeMat  documents,  was  at  that  tûne  either  in  Québec  or 
Mootoeal,  and  probably  in  both,  as  occasion  might  require. 
=  Wè  hvre^  then^  ai  the  very  outset  of  ail,  a  Mr  <^iderstion  of 
ihis  case,  the  fut  that  it  procedéd  from  our  country,  and  I 
iay  that  Ihis  fikot  is  not^djr  of  great  importance  and  significanee  b 
Hmlf^  but  absolntely  of  décisive  import  upon  the  mérite  of  the  de- 
fence or  expltDatkm  attebpted  by  the  prisoners.  The  Ooturt  will 
Temwolyr  how,  in  tiieir  viwtaatary  examinatkaM^  ffae  jaisoners  i>ll 
lind  a&ew  upoii  âMTiiierëinï  âillie^ 
oountry.  '  It  nill'  bé  itiaMtib«r»d  tob|  how  in  addition  to  éôB  aver* 


.-.n 


Si^*liiLibM,  ■. 


\  ' 


•  î 


e,  the  fact  so 


8«6 

Mont,  now  proved  by  theii^  own  witnesses  to  h&  untrue,  some  bf 
Sî?  ^«'f,  «^'^ed  to  reproach  this  country  and  its  govemment 
With  whât  they^were  pleased  to  caU  its  unexampled  conduct  in  this 
matter.    It  is  far  from  ii^v  wish  at  this  time,  to  say  anythine  un- 

g^^i^lïïïî^r-î-      *1  T?  P^T"?  f  aggravating  their  présent 
«tion,  butit  is  a  rule  of  law,  Which  I  am  obliged  to  invoke,  th4t 
ough  a  party  accused  can  prove  nothing  in  his  own  favor,  by  what 
he  may  say  on  his  voluntary  examma^on,  yet  that  anything  he 
aoes  say,  if  aftenrards  contradioted,  must  bave  the  gravest  effect. 
Oh  the  degree  of  confidence  to  be  placed  in  his  account  of  the 
Wtosaction.    Tjxe  nnsoners  were  made  aware,  no  doubt,  of  the  im- 
portance of  this  élément  in  their  case,  not  so  much  with  a  view  of 
avoidkg  their  d^ect  responsibility  to  the  criminal  laws.  of  this 
Oountry  imder  a  prosecution  for  the  misdemeanor  in  itself  ;  as  on 
jccount  of  the  direct  and  décisive  bearing  that  fact  must  necessarily 
hâve  upon  the  lawfuhiess  of  the  enterprise,  which  they  were  going 
tp  Mt  up  by  wav  of  answer  to  the  case  made  out  against  themT 
•And  well  aay  thèse  pnsoners  bave  felt  that  anxiety,  and  adopted 
ftàt  précaution  ;  for  even  without  the  légal  knowledge  which  they 
Ifel^  in  a  positaon  to  command  upon  this  subject,  their  own.  astuti 
ne»  might  readily  hâve  suggest^to  them,  that  mankind  would  be 
,  J^pieiods  of  tiie  ongm  of  Bjicfi  an  extraordinary  proceedine  •  for 
it  jrashardfy  for  an  insteaTto  be  conceived  that  without  the  crimi- 
ûa^^connivance  rfscjmé^one,  or  more  than  one  in  this  country,  and 
Withoulr  the  8eM%  of  a  neutnd  territory  to  retreat  to,  such  an 
WitertoisrWoald  ever  bave  been  entered  upon  at  ail,  or  that  sane 
Jien  %ould  ever  bave,  contemplated  it.    fheir  own  good  sensé 
top,  and  their  own  mforination,— for  they  are  persons  of  some 
Mucàtion,— might  hâve  mformed  them  that,  leaving  positive  law 
totirely  out  of  the  question,  there  was  U  plam  and  unanswerable 
î!!£?'"7^®r'^*^*"",°^4^°g«'^^ye^en  the  most  just  and 
ttIrtW  and  solemn  war  should  lose  its  character,  and  become 
toMJ  bngatndijge  wben  directed  from  the  sheltér  of  a  neutral 
teçntoïy.    It  is  bècause  nations  who  bave  the  misfortune  to  be  in- 

'!5ïï.V?^"f?rî?^^*^®y.°?Y^  expected  to  be  armed  at  ail 
pomtt  ftom  ^hioh  they  m^y  be  lawfuUy  attacked  :  upon  the  frontier 
of  the  enemyi  tipon  the  open  sôa  ;  and  even  &t  any  point  of  désert 
or  nninhttbited  cotmtry  ;  tliey  could  not  be  expectei— the  laws  èf 
Jjr  and  of  comteon  dVilization  fbrbade  them  taking  the  precau- 
gon  to  be^anned  along  the  CQnimx>n  ftontier  of  a  friendly  power/ 
Xhe  law  of  nations  authorwsed,  and  prudence  called  upon  them  tô 
De  prepared  at  aU  thèse  ôther  points  ;  but  honor  forbadè  them  to 
Jggggctafifkgfflyiiowe^  his  pewer,  to  mabttfn  hir  - 

2?  T*l.  n^y^^îP  ?*?®^  **"  *<*  ^^  prepared  for  thesuiprise  and 
won  ite  thrtWÏKJrjr  of  theSr  onemies  ;  but  not  for  the  acomesoenoe 


^•"^Vii 


^ 


'ifï 


.  t 


b 


M' 


r  If 


h  "  ^ 


r 


■ff   à 


•'^ÉK*à\lhA»«''JïiV!V   .'»    J  ."H  iu><4  V  .♦     -,  ?. 


* 


ffM 


886 

or  even  the  apathy  of  their  friends.  Clear  as  thèse  principles  uo- 
doubtedly  are  in  tnemselves,  they  are  still  bore  olearîy  enunciated 
by  writers  on  the  law  of  nations,  and  by  judicial  décisions  of  thé 
highest  authority.  , 

The  question  of  the  absolutely  unla^ul  character  of  even  an 
apparently  jwarlike  expédition  sburtiàg^'lrom  a  neutral  territory, 
has  been  evaded by  the  covtnsellor  the  prisoners,  and  instead  of 
the  question  which  ariçés  in  ^s  cause,  and  arises  under  the  évi- 
dence adduced  byihemselves,  being  made  the  subject  of  discus- 
sion, anothër  question,  and  one  which  has  nothing  whatever  to  do 
with  this  case,  has  been  raised  and  discùssed  by  uose  gentlemen. 

\The  question  we  are  interested  in  discussing  hère  is,  whether,  origin 
and  progress  in,  and  émanation,  f^m  neutral  territory,  deprived  an 
expédition  of  lawful  belligerent  character,  so  as  to  nullify  it,  in  the 
jpresent  proceeding,  in  a  neutral  country,  where  its  lawfîuness  is  set 
up  to  destroy  the  character  of  otherwise  proved  felony.    llhe  ques- 

'  tion  which  they  on  their  side  are 'désirons  of  trei^g,  is  whether,  as 
between  two  belligerents,  the  one  making  lawful  war  in  the  other's 
territory,  the  soldiers  so  lawfuUy  making  war  on  its  soil  will  be  held 
in  the  Courts  9/  the  invaded  country,  tuhen  they  are  tried,  to  be 
ordinary  criminals. — This  latter  question,  the  solution  of  which  dé- 
pends entiroly  upon  évidence  at  the  trial,  is  the  oné  that  was  dis- 
cùssed in  McLeod's  case.  The  only  case,  I  believe,  in  wUch 
it  ever  rec^ed  a  judicial  -décision,  and  that  décision  rendered 
by  Judge  Cowen,  was  to  the  effect  that  they  were  not  an- 
swerable.  I  "am  quite  aware  that  in  a  review  of  this  décision 
pubUshed  in  the  Appendix  to  the  26th  volume  of  Wendell's  Reports, 
the  contrary  opinion  is  ably  supported.  The  responsible  judicial 
décision  was  that  of  Judge  Cowen,  acting  as  a  Judge  of  the  Suprême 
Court  of  the  State  of  New  York.  The  review  of  that  opinion  is 
from  the  pen  of  Judge  Talmadge.    The  Judge,  acting  as  such, 

,  décides  that,  even  in  jiuch  an  extrême  case  as  that  of  Alezander 
McLeod,  the  particulars  of  which  are  too  well  known  to  requhre 
répétition,  the  party  is  liable  to  the  ordinary  erinùnal  courts.  The 
reviewer  says  he  is  not.  It  may  seem,  that  the  Judge  was  wrong, 
and  the  reviewer  right  ;  but  still  the  décision  is  therë,  legally 
onreversed..  Admitting,  however,  for  the  sake  of  argument,  that 
Bvich  is  tke  case,  what  has  the»  principle,  in  either  view  of  it,  to  do 
with  this  case  ?  ^!Fhe  question  tiiere  discùssed,  is,  whether  tlie  sol- 
diers of  a  lawful  war-making  j^wer  are  liable,  in  tfte  enemy'i  terri- 
tory^ where  they  go  to  make  war,  to  be  treated  as  private  criminals. 
This  is  so  clearly  a  matter  to  be  discùssed  between  tiie  two  powers 
engaged  in  the  war,  that  I  ^eel  at  onbe  the  immopriejty  of  detl^niIig 

■  tfae  Court  by.  any^reasopiag  to  prove^itHsa»  -Whe&ca^^^a^aiîés^^ 


will  operate  effectually  or  not  for  the  acquittai  of  theç^  men,  in  the 


887 

■    "  -      ■  \ 

Btate  of  Vermont,  when  they  net  there>  m  aA^-      -j    xt.    « 

the  fact«  80  alceîteined  the1aî^i,r?^°'?  1?  ^^^  ^"^-    ^o 

tion  of  those  CouTcomes  ti  Je  eî^,^^^^^^^ 

ever  may  be  our  opinion  unon  the  m«^ïf  >i  ^®  *"»'' *od  what- 

the  United  StaLTÎJn  âe  LT«T  ^i^"^*""'  ^  *^«  ««^  «^ 

on  the  other  h^d  is  lolKS  .  f  '  •^'"*^  ^***«^  gownm»ent 
havecommittTol  oX  ôr„i?°'^^^^^^  "^^  <'«rtam  i^en 
between  UB  andS  ^o^t i^TwerA^a' ^ 

justice  ;  but  we  cann^tt";  t^ém 5ht^e^ir' •'^'.°'^^«  °^ 
therefore  the  promise  ofCarnla^^^^^^^^  ^* 

m  due  course,  a  trial  of  aU  thèse  points  shS  bThS     S^V""^ 
would  be  the  Drooer  T>lftp«  t^ ',SlZ!!T  ^         -l-hifl  perhaps 

hâve  had  no  eround  of  comnWm*  o!^j  •    xl    f^  ^^>  ^"  ^^  «ide, 
occurred  in  En^a^d  u^d^^  wï^U^o»  ^*  ^^ 

educated  people  know  therernof^S'^r  îf^A^^oses  nj^ch  aU 
and  which  are  no^^cem  of  ou«  .?  n^^^^  ""^T^  oflrising, 
we  had  not  corSdeSrther  w^  Inlf  r*"  ^?  ^^^  <*<>•  ^ 
them  ;  and  its  vei^  exitence^^^^^^^^  ^^"J"^-''^  Ï*J^  ^'«^ 
are  satisfied  of  th^justice  onffSws        '  *"  *  '''^*''*  ^*^^"» 


i. 


i; 


.  -lui 


Il;, 


'ii^ 


acqurttedrtrerwMTafteri^^rST^^ 

fact  wouiabe^a^-^r^r1.Sne=S;;:^;Sàt^ 


.kl 


Aït-  .»,.>.;; 


ilj»,_i*i,F    ""^J'    î.'Atf 


■«-^     '  ■■■•fMy 


1  .  '     8«8 

'    i 

dÛBt,  or  %  ptttting;  aa  end  to  the  prinoiple  of  extradition  betwe«n 

Sir  CoiCfall  Lewis  ohaervea  with  référence  to  thifl:  /i"The 
bit  d  «  aaawnption  upon  which  a  treaty  of  extradition  resta  is,  thata 

"  oivilised  ayatem  of  criminal  law  ia  exeCuted  with  fwmeaa,  and 
«  tbat  the  bases  dûmed  for  aurrender  are  those  of  offendera  really 
"  auapected  of  the  criTO^a  with  which  they  are  charged.  If  a  dia- 
"  honeat  and  colorable  uae  were  made  of  auch  a^  treatv  ;  if,  for 
«  example,  W  pditical  refugeo  were  charged  with  one  of  the  enu- 
«mer&tôd  dfencea  for  the  purpoae  of  bringing  him  withm  the 
«  power  of  hia  Goveminent,and  rf,  when  he  had  been  delivered  up, 
«  he  was  pmahed  for  a  political  crime,  it  ia  clear  that  a  ayatem  of 
"  extràdiUon  could  not  be  mamtained  with  a  govemment  which  bo 

«  pervartedthe  treaty."  .„  v     xi.      •    xi. 

We  cannot,  therefore,  aaaume  the  pnaoners  will  be  otherwwe  than 
fairly  and  juitly  tried  ;  aûd  evèn  if  we  did,  we  hâve  no  right  for 
that  reason  io  évade  thia  clear  obligation  of  the  treaty,  and  to 
oonstitiàie  ourielvea  hère  the  tribunal  which  ia  to  try  the  alleged 
offenca,  tima  aiiperaeding  the  proper  juriadiction  of  the  Courte  of  the' 
United  Stateai  withm  whoae  temtory  the  act  charged  waa  done. 

Ail  after  eoûsiderations  connectefl  with  any  anticipated  abuse  of 
the  Tréftty  miSt  be  lefl  to  the  Executive  Govemment,  and  cannot 
guide  the  action  of  a  court  of  justice. 

To  remove  any  influence,  however,  which  auch  an  argument 
might  hâve  on  tihe  mind  oi  the  Court,  it  may  not  be  inappropriate 
to  aay  that  ther^^is  the  cleareat  authoritv  of  writera  on  international 
law,  that  the  pràoners  could  not  be  tried  except  for  the  offence  wUh 
which  they  are  charged.  Fœlix  says  :  "  Il  est  aussi  de  règle  l'ior 
«  dividuttont  l'extwwUtion  a  été  consentie  ne  peut  être  poursuivi  et- 
«jugée  que. pouî  le  crime  a  raison  duquel  son  extradition  a  été 

"  obtenu?'       '   \  ,.       ,    x   x,.  i: 

Addressmg  pijBelf,  then,  at  this  moment,  direotly  to  tiie  queatioû 
whetixer  the  oircttijoatances  proved  in  thia  case  clathe  the  transac- 
tion with  the  char^cter  of  lawful  war,  I  beg  leave  to  r?ad,  ahuoet 
Without  comment»  ^me^xtrabts  I  hav©  mad«  firomthe  mofltesteemr 
ed  authorities  upon  international  Uw.  Upon  one  preliminan?  point, 
îfc  ia  to  be  obaèrvèd  that  Judge  Cowôn  and  Judge  Talmadge,  h» 
aritic,  both  agrée.  ^*  To  warrant  the  destruction  of  property,  or 
the  tatdûg  of  life»"  says  Judge  Cowen,  "  on  the  ground  of  publw 
war,  it  miist  be  what  ia  called  lawful  war  by  the  law  of  nations. 
"  AU  will  agrée,"  aaya  Juge  Tahnadge  in  m  review,  *^  that  the 
wv  ^hioh  afibrds  impunity  to  thoae  engaged  in  it,  must  be  a  kwM 
^war.»    Vatteï  18,  le.  4,  sec.  67,  says  ;  "  a  war  hiwiul  and  in 


fcNnû  is  cwBÎttQy  to  l^  disi 
on  withioift  any  iomt[  w  *< 


fi^  an  unlftwtbl  war  enlBï 
from  tio»«  meurnoM  which  ait 


t,W 


!ju    ^  f  fî  «-'^ 


«1 


litioD  betveen 


m 


■\ 


«•k  irrerooMibiUty  hère   thev  m3  T«^«®:    "  «e  prisonew 


A^d  them  m^  be  «  l»»foi^act  by  the 
begin  w»th  the  pretènded  authority  of 
WM  the  power  of  Mr.  Clay,  on  Cana^ 

«Jonty  of  Mr.  Seddon,  the  Seoretary  m 
Attorney-Genenil  Hall,  in  the  McLeodé 
'  »  Çw  expresses  hanself,  with  the  appi 
monL ne  qaotes  ; *^  '''■  --     ■      •      ^" 


ûations.  "  Now,  îô 

let  me  a«k  where 

'  ^  to  gire  lawful 

\  ODoy  the  au- 

fhe  argument  of 

,    rend,,  page  680. 

^àasent  of  Mioltstone, 


•    u  T*  «j     :     :    "fif'^^ff^tifavm  01  JmaokstonA 
Bteoksle  sa™,  «an^t  oTpiîif^^  h««  Sovereign's  commands> 

^d,<tfaPreddennfZ(attrs^^^^^  <''^«»'»e 

Cowen,  (2&  Wend^  paee  682^  ^  !  n  pn«îfaQe,"    ask»  Judge 
nationg  for  onrMti;n^t?  «end  inV^-S°^  ""^^^^         *^*  ^''^^^'^  «^ 

lïlïï'"*'''  **°®P*  '^û  *«  assumption  of  fiSt  SSp?Ï?^«* 
•othontieB  tt>«ro  «tôt  o^  ««a/»  iri*k  «1.0+  ^JT:    ^ .  ^  *"*  Canadiâb 

I«t  w  ther«^^K  S.  ^  *°**  ^'*^'^  of  American  territôpT 

«w,  w,,  «nerefwe,  wità  the  eononrreneè  of  thmM  i«»  i.,u:-2r  •*'"?'*'y. 

•je  language.to Ihis  <«8e/àhStf ÏÏ tTer^?i!Sf'!J!f'*^^  T 


y. 


■A- 


•il 


À 


ï 


I 


A  A^A&^J'^éM 


n  i 


J 


f  < 


! 


rr 


'  i 
{Si 


a.   7 

'   1.? 


'         840 

favor  of  its  'sovereign,  and  you  are  his  dave."     How  is  it  possible 
then,  witKoutproclaiming  that  we  hâve  ceaaed  to  be  neutrals,  and 
bave  deliberately,  and  as  a  nation,  espoused  the  cause  of  one  of  the 
bellieerents,  to  hold  that  we  can  lawfuUy  allow  to  be  executed  on 
ourwiLWbetherby  meansofMr.  Clay,  or  any ,  other  person,  the 
orders  of  Mr.  Seddon  or  even  of  Mr.  Jefferson  Davis  hunself,  fpd 
if  we  do  80,  shall  we  not  cease  to  be  an  independent  and  neutral- 
power,  and  in  the  words  of  Judge  Cowen,  become  the  slaves  of 
tiiose  to  whom  we  thus  tamely  submit  ourselves.     One  or  two 
things  must  be  published  to  the  world-by  the  judgment  which  vour 
Honor  is  bound  to  pronounce  on  the  présent  complaint.     The  Court 
must  décide  that  the  British  dominions  are  neutral  territory,  as  far 
as  regards  this  war,  or  that  they  are  not.    To  décide  that  they  are 
not  would  be  to  contravene  the  public  law  of  the  realm,  and  the 
express  command  of  thô  sovereign.      To  décide  that  they  are 
neutral,  involves  without  the  poBsibility  of  escape  from  the  conclu- 
sion—the  necessary  conséquence  that  this  act  authorised,  origm^ 
ting  and  proceedmg  from,  hère,  is  deprived  by  that  circumstance 
alone,  of  the  character  of  lawful  hostUity.    Vattel  B.  2,  c.  7,  s.  84, 
•favs   "  It  is  ùnlawful  to  attack  an  enemy  in  a  neutral  country,  or 
to  commit  any  other  act  of  hostility."  "  A  mère  claim  of  territory," 
says  Sir  William  Scott,  is  "  undoubtedly  very  high.  When  the  fact 
is  established  it  overrides  every  other  considération,"    (5  Rob. 


enemy's  or  m  a  territory  which  belongs 
a  There  is  no  exception"  says  Chancellor  Kent,  "  to  the  rule  that 
everv  entrance  into  neutral  temtory  with  hostile  purposes  Is  absc 
lutely  ùnlawful.  1,  Kent.  119,  4th  éd.  Judge  Talmadge-'e  review, 
80  often  cited  (p.878  of  the^  Wendell  (admitting  with  Judge  Cowen, 
that  acts  ùnlawful  per  »e  art  alike  unlawftd  in  the  Sovereig»,  and  m 
the  subject,  adopta  also  Judge  Gowen'slanguage,  andstates  the  rea- 
Bon  to  be,  "  that  where  he  bas  no  authority,  there  he  la  no  kmg,  for 
wheresoever  Ae  authority  ceases,  the  king  ceases,  and  beconles  Bke 
other  men,  who  bave  no  authority."  The  language  of  Chancellor 
Kent  which  bas  been  cited  by  my  leamed  friend  Mr.  Bethune,  to  ex- 
plain'the  ci<«gon  of  the  same  author,  at  the  same  page,  made  by  my 
friend  Mr.  Kerr,  is  equaUy  plain  and  explicit.  H«  cites  tiie 
authority  of  Sir  W.. Scott,  and  says:—"  In  the  case  of  the  twœ^ 
Ge  brœders  (8  Rotll',  886)  it  was  expUcitly  declared#at  no  pro»' 
imate  fièts  of  war  are  in  ipy  manner  to  be  aUowed  to  onginate  on 
neutral  gwund  ;  and  for  a  ahip  to  atation  heraelf  mAm  the  neu- 


tral  line,  and  send  her  boate  on  hostde  enterpnses,  was  an  act  ot 
hostility  much  too  immédiate  to  be  permitted.     No  »ot  of  hoatihty 


'■» 


m 


■0 


u 


841 

the  comfort  and  support  of  one  paitjr.»    1  Kent  v   120     Vl 
mne  docWne  is  contained  in  WheaS,  p.  TlSrand'at  p  7i?^f 

Z^  fS?  .."^°'?"*  "«««'    «"«h  aa    procuring  provisK,  C 
ÎTwS^ver  "in  t?«  '"''  *?  ''*^'^^  *^  any^^xin^ate  JTf 

a^  doubt    could  exist  upo'n  this  part  ofMe  cl,  Tat^doubt 

wodd  Burelvbeset  at  rest  by  a  référence  to  the  récent  cr^of 

_  Burleyd^,(ïed  by  the  two  Chief  Justice^  of  the  QueeXBenTJd 

Cominon  Pleas,  and  two  Judges  in  Upper  Canada.     This  cTe  is  «o 

now  discussing,  that  any  extended  or  argumentative  référence  to 

ée  Sbt  of  Xtï  ""'""'^  ï\  ^«  ^*  «^*^^*  cJe  We  t 

Lî!      i  «nanimity  of  opinion,  was  exactly  the  point  which  I  hâve 

t     SïïrfJ'  ''^"^'^'^'^^  Cou^>  in^the  présent  cte 
I^';l«rJi       mcophon,  or  carrying  out  in  any  manner  of  such  à 

^«        J^K^*^/"i  ^*'*'*'y-     S«  solemn  and  décisive Tiud™t 

Crn'.*^^  J"^«''.'"  ^'""'^'^^y  «^i»«°t'  and  aaeriîeTueflt 
argument  of  every  ^int,  which  the  self-res^ct  of  the  rrofessfon 
mTJpper  Cwiada  suffered  counsel  to  raise,  wm  feit  no  doubt  T 
Sî^'T'l  ^T-^î^'  *"  ^«  ^  "^^tt^»-  ^J^i^h  thly  cou  d  not  retse  to 

.?S  ?'ff  •  ®  ^'^a^y  way  of  treating  judicial  décisions  •  m 
mstead  of  havmg  any  answer  attempted  to  «he  reaa on  oX  prindnTê 
ofthat  décision,  we  hâve  been  oïliged  to  conlnt  iSes  S 
heanng  the  Bar  and  the  Bench  of  Upper  Canada  assXd  ^d  dï 
pieciated  in  a  peculiar  style,  which  I  trust  those  l?S^ersoM 
mU  not  beheve  to  be  usual  in  the  practice  of  the  profS  b  tW^ 
pwt  of  aie  Province.  But  aparfc,  may  it  please  you.KrC;  «^^ 

iltdtrrfÛrtKh'""  *"  '""^^^'^^  S  a^opront 
to^e  charTlf  J       J   ^^^  °"  """^  ^"'°'°a'  Ja^  to  ««certain  tne 

^ttelTn  f**'^*''^P^*''^y  ^«"«'^««d  as  unlawful     Thai 
onder  the  oomAon  law  in  some  cases,  and  by  express  statute  in  others 


Hi 


^1 


I  r 


I 


■In 


i-  « 


■^..■ 


li! 


Kj! 


û 


'■'     î: 


■    \ 


m 

,     >   'i 


T 


p.k    4t 


V. 


\  842 

theV  are  subject  to  mdictment.    If  then  this  be  law.  there  îs  an 
ond  to  tbis  part  of  the  case  ;  and  it  remains  to  be  shown  bow  Mr. 
Clay  by  coùiing  mto  oui*  covmtry  and  aetting  its  laws  at  défiance; 
how  by  coming  hère  and  in  bis  own  person  committing  an  indictable 
offence,  and  as  respects  bis  associâtes,  causing  tbem  to  commit  the 
Uke  offence,  he  can  confer  upon  his  actions,  or  upon  theirs,  the 
character  of  lawful  authority.    It  remains  to  be  abown,  I  say,  that 
-what  in  the  cases  of  ail  persons  indi6criminately,wbetherforeigner8 
or  not,  is  directiy  forbidden,  declared  to  be  uiâawfal,  and  ptinished 
accordingly,  beTcomes  lawful,  when  instigated  by  Mr.  Seddon,  and 
actually  practiaed  by  Mr.  Clay  and  his  accompliees,  the  unfortunate 
men  before  the  Court.    Before  taking  le^ve,  hoiiEi»ver,  of  tbis  part 
of  the  case  there  is  a  very  high  authority,  and  a  very  reeent  One, 
which  I  find  printed  in  the  pamphlet  containing  tiie  trial  of  John 
Y.  Beall.    It  is  the  authority  of  Dr.  Lieber  contained  in  a  letter 
read  by  the  Judge  Advocate  upon  that  trial,  to  establish  points  nok 
arising  in  the  présent  case,  it  is  true  ;  but  it  incidentally  touches 
upon  the  point  we  are  now  considçrmg,  and  in  the  followmg  words 
disposes  of  the  légal  character  of  such  enterprises  as  tbis  upon 
gênerai  principles  :    ''  I  ought  to  bave  given  something  on  enemies 
who  in  disguise  come  from  the  territory  of  a  neutral  ttii  commit 
robbery  or  murder,  and  those  who  may  come  from  such  territory  m 
uniform.  I  do  not  believe  that  such  people  now  oalled  by  the  unao- 
ceptable  term  "  raiders  "  hâve  ever  been  treated  of  by  any  writer. 
The  thing  creatôd  no  doubt  in  the  mind  of  any  one.    They  bave 
always  been  treated  as  brigands,  and  it  oan  eaâily  be  ehown  upon 
principle  that  they  oannot  be  treated  otherwise.    Mever,  ao  long  as 
men  bave  warred  vrith  one  another,  and  that  is  pretty  much  as  long 
as  there  bave  exiated  su£Scient  numbers  to  do  so— bas  auy  bellige- 
rent  been  insoleht  enough  to  claim  the  protection  of  the  lawsof  war 
for  banditti  who  take  i^assage  on  board  a  yessel,  and  ^en  riae  upon 
the  captain  and  crew,  or  who  gather  in  the  territory  of  a  fiiendly 
power,  steal  in  disguise  into  the  country  of  their  enemy,  and  there 
commit  murder  or  robbery.     The  insolence— I  use  the  term  in  its 
scientific  meaning — ^e  absurdity  and  reckless  diiregard  of  honor 
which  characterize  tbis  proceeding  fairly  stagger  a  jurist  or  stadent 
of  history .  '  '   This  is  the  language  of  the  eminent  Dr.  Lieber,  an  autho- 
rity admitted  to  tie  of  the  highest  character  by  my  leamed  friend,  Mr. 
Laflamme,  who  was  himself  the  first  to  cite  the  work  in  support  of  the 
pntion  which  I  do  not  contest,  that  as  between  armiea  in  thelBeld,  the 
laws  of  war  alQne  apply .  The  insolence  or  non-insolence,  that  is  to.  say, 
ihe  unused  and  unheardof  character  of  such  proceedings,  is  doubtleas 
the  reason  why  no  writer,  as  Dr.  Lieber  says,  bas  ever  oonydercd 
"iMirSrrfiK  while  to  waste  papér  or  tiSô  iF^ûribtng,  ôî"  tn 
mauner  dwelling  upon,  wnat  is  in  itself  obvioualj  ui]^uatifiablé« 


\ 


848 
Hère  then  I  feel  I  may  safely  leave  this  most  important  and  deti 

Sr  m»^P•*l'^i^''  case  hardly  less  important  than  the  preced- 
wt f  ^if  ""  ?'  ^""t  '^  *^  examiniqg  magistrate  in  suchfaaes  ? 
What  »  the  nature  and  extent  of  his  pTwer  ?  For  the  purpcse  of 
ttuBenqmiyitisnot  necessaryto  assum^  thèse  men  to  be  guilly. 
S  wE^lr  °'^y,.^?5°«  *at  there  is  an  accusation  agamst  them, 
for  whHsh  they  are  hable  to  trial  in  the  Unité.!  Stafes  where  the 
act  yas^committed.     What  then  is  the  duty  of  the  magisSj  ? 

Hir  Comwall  Lewis  puts  it  thus  clearly  and  explicitlyf  «In 
W  tr^'l^  T^""  ^^  fxfradition  effectuai,  tL  a4)unt  of 
w  „-Îk  *i,  ^'''™*l**'««  required,  should  be  aa  small  aa  is  consis- 
fW  !  «5  prévention  of  abuse.  «,<*  essence  of  the  «ystem  is, 
that  confidence  18  reposed  i»  the  foreign  government  aid  in  its 
administration  of  cnminal  law.  The  assurance  of  that  government 
Zïi^nw  v'^!u  ^T"?'  «^««ins^f  abuse.  If,  therefore,  it 
olaims  any  fugitive  through  the  accredited  „«plomatic  channels, 
and  gives  a  reasonable  proof  that  there  has  been  a  proper  investi- 
gation by  the  officers  of  police  and  the  functionaries  conductine  the 
Fehmmary  stages  of  judicature,  apd  that  this  investigation  had  led 
LflS°°  "Tw*^^*.**î^  Pe«oo  in  question  is  guiltySf  the  offence 
charged  against  him  ,t  is  désirable  that  the  extSidi4n  should  take 

investigation,  such  as  a  magistrate  would  make  for  the  commirent 
of  a  pnsoner  in  this  country. 

And  again  he  says  :  «  ïhe  récognition  of  the  crfininal  law  of  a 
foreign  State,  and  the  confidence  in  its  regular  and  just  adwnistr»- 
taon,  whichis  imphed  m  a  System  of  extradftion  thus  caSd  into 
effect,  is  paralleled  by  the  established  practice  of  this  and  other 
countneijith  respect  to  the  civil  law."  «* 

In  faoWhe  rule,  thus  clearly  stated,  hns  been  foUowed  in  nra^Hce 
wberever  questions  under  the  Tt«aty  arose. 

In  tho  Andersen  case,  Chief  Justice  Draper,  with  référence  to 
thecase  of  a  party  accused  of  murder,  in  order  to  justifVit,  obse^d  : 

If  there  w  a  question  of  fact  to  be  tried,  I  apprehend  he  must  be 
Bwrender^,  a«  such  a  quentùm  can  tmly  he  tried  in  the  eountrv 
where  the  fact  arose."  ^ 

^^îi*!  Chesapeake  case  the  same  question  was  incidentally  dia- 
posed  of.  The  counsel  for  the  prisoners  waa  proceeding  to  comment 
on  the  évidence  of  authority  from  the  Confederate  Government, 
when  Mr.  Justice  Ritchie  observed:  "Assuming,  as  you  must  do 
at  thia  stage  of  your  argument,  the  correctness  of  the  proceeding» 

^gg™e  g-Monep,  And  the  magistrtttg's  iuriadiction  of  ihe  offemâ^- 

00  not  thèse  Questions  fall  within  tha  n»in;w.»o  «f  +u«  a :_-  n î 

on 


not  thèse  questions  fall  within  the  province  of  the  Superior  Court 
the  tnal  of  the  prisoner  ?    Is  it  not  the  magistrate*»  duty  now 


%■ 


)i.l£^.^-  -i«lti>.i."iilita.»»J..'h.'..u  /„,^ . , . 


V- 


-J  .. 


'i  i. 


iP\ 


:  m 


^i» 


< ,  , 


,li 


u 


l^  * 


844 

merely  to  see  if  a  preliminary  case  is  înade  out  ?  I  think  we  must 
act  in  ÛÔB  cme  just  ag  if  it  was  an  oflFence  committed  hère.  The 
question  is,  would  I,  on  the  évidence,  commit  for  trial  in  this 
country  ?    If  so,  must  I  not  commit  the  parties  for  extradition  ? 

(^Coumd.')  "  ïn  Anderson's  case  a,primafacie<iase  was  made 
out,  but  the  prisoner  waa  discharged.  And  so  in  U.S.  vs.  Palmer., 
4  Curtis,  314.  Parker  is  found  in  command  of  the  Rétribution, 
and  Braine  and  Parr  acting  undar  him." 

{Bitchiei  J^  "  I  think  thèse  questions  are  proper  for  a  jury,  and 
not  for  the  ma^trate.  His  duty  js  simply  to  ded  with  this  case 
as  a  magistrate  ^ould  deal  vrith  an ,  offence  to  be  tried  in  this  coun- 

tiy.  -■»■ 

Thèse  principles,  so  self-e vident,  hâve  formed  the  invariable  rule 
of  action  by  which  the  American  Courts  and  judges  bave  guided 

themselvc*!?  -  ,,    ^       .   ."* 

In  the  récent  case  of  Muller,  heard  before  Mr.  Commissipiwr  * 
Newton,  the  prisoner  applied  ièr  pet-mission  to  adduce  évidence, 
to  establish  an  alibi.    The  foUowing  objection  was  taken  by  the 
prosecution  : 

'  "  The  évidence  b  such  as  would  plainly  require  the  commitment  of 
Muller  fo/1;rial  if  thé  offence  had  been  committed  hère,  and  it  re- 
sults  Âat^a  certificatô  leading  to  bis  extradition,  that  the  case  may 
undergo  an  investigation  in  England,  should  be  granted."     And 
on  this  the  Commiasioner,  in  the  foUowing  language,  applied  the 
law  clearly  applicable  to  that  and  every  other  case  arising  under 
the  Treaty  :     "Having;  heard  and  carefUly  considered  the  testi- 
mony,  and  weighing  it  in  my  mind,  that  there  is  not  sufficient  évi- 
dence for  me,  sitting  hère  snnply  as  a  ma^trate,  and  the  duty  for 
me  being  simply  to  détermine,  not  whether  the  man  is  guilty  or 
not,  but  whether  there  is  sufficient  évidence  to  require  that  he  may 
be  committed,  in  order  to  afibrd  an  opportunity  at  the  place  where 
the  crime  was  committed  of  proving  his  guilt  ot  innocence.    It  is 
not  neceMOry  for  me  to  aay  whether  I  would  convict  the  mqfi,  and 
aentence  him  to  be  hung,  were  that  even  in  my  province^  but  the 
duty  that  I  bave  to  perform  is  simply  this:  first,  bas  there  been  a 
crime  committed  ?  If  corijmittéd,  is  there  probable  cause  from  the 
évidence  adduced  to  say  that  the  accused  is  the  party  who  bas 
committed  the  crime  ?    Now  it  appearS  to  my  mind  clear,  that 
looking  atit  iù  that  light — ^in  the  lightof  probable  cause,— it  is  very 
pltdn  Siat  there  is  such  cause.     I  do  not  désire  to  sit  in  judgment 
on  this  man,  but  I  wish  it  werç  in  my  power  to  discover  any  évidence 
m  the  "0^  ^hereby  I  could  withhold  the  certificate  ;  but  I  am 
bound  to  sayMîhat  the  combined  circumstanees,  to  my  mind  appear  so 
^esrtmè  ebétiaot^^at  «pon  the  question  of^^)able  cause  I  taU' 


not  baye  any  doubt." 


le,— it  is  very 


'      c 


845 


In  the  stdl  more  récent  case  for  murder  on  the  high  seaa,  on 
board  the  Bntidh  brig,  «  Raymond,'»  in  which  the  prisoner  desired 
to  Bhow  by  eViderice  that  the  act  was  justifiable,  the  same  judge 
apphed  thehke  clear  principle,  as  foUows  :  «Even  admittmg  that 
évidence  of  justification  could  be  legally  received  (of  which  however, 
onder  Je  Treaty  I  hâve  great  doubt),  it  is  notforme  to  détermine 
what  effect  it  might  or  might  nothave  upon  the  minds  of  a  jury  on  a 
final  heanng  or  trial  for  murder.  Under  the  Treaty  I  am  only  to  Je- 
termme  the  que8tion4jf  probable  cause.  The  wmple  question  hère  to 
be  decided  18  wheflier  there  is  suflScient  probable  cause  to  justify 
lus  return  for  trial  to  the  country  within  whose  jurisdiction  the 
cnme  is  charged  to  hâve  baeii  committed.     .    '  - 

In  the  case  of  Teman  and  othersfor  piracy,  alleged  tohave  been 
TOmmitte4  m  seizmg  the  steamer  »'  J.L.  Gerrity,"  in  the  month  of 
Jovember,  1863,  the  judges  of  the  Queen's  Bench  in  England, 
thoujgh  diffenng  m  opinion  on  the  question  whether  piracy,  Jure 
gentmm,waa  within  the  Treaty,  did  not  conlrovert  the  same  prin- 
ciple iMd  down  byXord  Chief  Justice  Cockbum:  «No  doubt, 
pnma  faouiy  the  act  of  seizing  the  Vessel,  saying  at  the  samé  time 
that  it  18  seized  for  the  Gonfederates,  may  raise  a  présomption  of 
such  an  mtention  ;  but  then  aU  the  circumslîances  must  be  looked  at 
to  see  if  the  act  was  really  done  practioally,  which  would  be  for  the 
jury  ;  and  I  cannot  say  that  the  magistrate  was  not  justified  in  com- 
mitting  the  pnsoner  for  trial." 

And  Mr.  Justice  Crompton  observed,  «  Upon  the  latter  point  I 
qmte  concur  iwth  my  Lord,  because  itïs  not  for  us  to  weigh  the 
^ectof^e  évidence  which  is  for  the  jury;  and  aU  we  can  con- 
sifler  18  whether  there  was  enough  to  justify  a  committal  for  trial,  • 
and  I  agrée  with  my  Lord  that  we  cannot  say  there  was  not  " 

It  18  unnecessary  to  multiply  Auth(||ies  on  a  pomt  so  clearly 
defined  by  the  Treaty;  but  the  fôllowing  observations  of  Attomey- 
«eneral  Cushmg,  m  advismg  the  Government  ^f  the  United  States 
m  a  case  where  the  pnsoner  arrested  for  extraditimion  a  charge  of 
murder,  desired  to  prove  insanity  before  the  com^^g  magistrate, 
are  so  pertinent  that  thev  are  quoted  :  "  The  évidence  upon  tha 
exhibition  of  which  this  {%.e.,  dehvery  up  to  justice)  is  to  bè  done 
18  such  as,  according  to  the  laws  of  the  place  where  the  fiftdtive,  or 
person  cbarged  shall  he  found,  would  justify  his  appreheiSon  Là 
comnntment  for  tarial  if  the  crime  or  oflênce  had  been  there  com- 
mtted.      ««  Had  the  Treaty  conferred  upon  the  magistrate— if  it 
could  haw  been  made  compétent  to  such  an  object—the  power  of 
faying  flie  person  ch|u-ged  for  an  offenoe  committad  within  a 
g^^|ffl  junsdiction,  and  of  punishing  in  case  of  ascertained  guilt, 
thoiiw[uuryjaighfrl»ve  presented  it»elf  m^^flferent  aspect.    Bîrt^ 
tùe  stipulations  ander  examination  aim  at  no  such  end,  but  are 


"Isïs"! 


•-) 


Xi 


\      » 


I  i   \i 


i  •;! 


i .' 


'^ 


>&> 


f:    Il 


ïf  v 


H> 


à 


ïB4» 


confined  to  theascertainment  (»  facts  ^hkh  cian  wl 
anjr  conséquent  anlt  purely  ju||cial  invelli^S^n  o! 
'It  i8  coiÉfended,  therefore,  thii|*  Ijpth  reStegJÉIfnd 


mère  ex 


*v 


\;\ 


^1  i 


\  ••'*  ' 


Il  ; 


rt  thç  eonclu^n  that  under  ttij|  terms'ê 
lute?  relating  thereto,  on  a  T^j^^èatiary  jùftie 
ht  to  pronounce  upon  tllï©  Bfe|t«  pf  feîctàw]^ 

whîcfet^e  prisoii 

say  that  toese  acits 

ry  ^é8,tion,  whethçr  ' 

'  wte  characteïr  of 

en  tVo  belligerent  powers  hâve  a 

act  is  one  of  rqbbéry  or  one  of 

atral  power^when  there  irno  doubt 

gei'ency  which-  exists,  tlie  icit  wonld 

ecMé'so  gravé  sead  serions  a  quç||S^  oh  a 

^-     ïttl6ttiry.   If  one  belUgerent  ireats  prisoneréJÉ,  félons, 

^e«  tB*y  were  Iput  pprfonning  itheir  duty  as  soldiere,  i^  other 

belli^tqi^t,  to  Yihom  the  prisoners  profess  allegiànce,  can^btain 

récures»  |>|»  reprisais,,  retaliatiop,  or  otherwise.  '  j 

;  j  havelTOw  endeâvored  to  lay  éefore  the  Court  in  as  succsiuct  a 

.  Wiâitaér  as  1  was  able  to  do,  the  view  which  I,  humbly  representing 

^;tii«l^^t  Law  officer  of  the  Cipwn,  hâve  feit  constrained  to  ti^e  of 

"«transaction,  and  «f  the'attempt  thp,t  has  been  made  to  justify 

I7have  endeavoùred  t(>  perform  a  legaL  function,  in  a  légal 

,  Àan^er,  and  J  hâve  purposely  avoided  ail  allusion  to  many  topics, 

-  yrhich  iù.  so  serions  a  (lase  might  possiblj  hâve  juïitihed  almsion  on 

mv  part.    There  is  one  aspect  of  the  case,  howevei»,  resting  on  the 

•jbrWÛiest  grounds  of  intema^onal  comity,  and  of  the  duty  arising 

ont  of  the  relatibnship  which  shotdd  properly  subjdst  between^two 

countries  situated  as  Canada  and  the  United  States.     He  circtiim- 

«i^stan'ces  of  the  two  countries, — their  geographical  position, — the 

^Bfficulty  çf  exercising  eflfectually  a  continuons  vigilance  over  the  acts 

'  of  those  who  under  pretence  of  sôeking  mère  security,  hâve  onhr 

resorted  to  Canada  that  they  may  mature  ,with  impimity  hostiiie 

schemes  àtgainst  anadjoining  power  with  whom'we  are.on  Jerms 

of  peace  and  amîty,  hâve  ail  to  be  considered.    Our  oondv 

to  be  what  we  would  expect  and  exact  from  others  in  the , 

•and  such  aa  the  law  of  ojvilized  nations,  in  the  exceptàoii 

we  ocçupy,  demandftg^irhe  doctrine  of  afibrding 

tdcàl  refugees  is  a4^«ffi|  to  the  fulleat  extei^t  ; 

tality,  the  dictâtes  ^|p|panity  and  the  gênerai  feel 

support  it.  ^  But  it  isan  asylu^  in  the  |ât>per  ace 

wordj^hich  is  sought  ;  and  aire  the  prisoners  polit 

-oxile^rigfilh(r  80  tèimëdTibtcr^tjr  is  not mcmnlëc 

sanctuary  within  our  territory  unaer  ail  circumatance 


1' 


347         * 

J  the^pnvUege  of  asylum  is  not  abused  to  the  inmrr  ^a  fSI  ' 

Ë Power  18  equally  ïmperative.  We  are  bound  to  coSîde?wheS 
Bufcral  ground  îs  only  resorted  to  becausç  it  oS  aslfetl 
ment  resting  place  in  the  intorvalB  of  warfarerand  a^^e 

*  fiTfL  ^•^?x"^'*J?''^'"  ***^«  ^®e^  undertaken  and  committei 
m  for  the  proaaim^  of  the  suppoaed  aeylum-whether  th^are 
wil  7*^;*^  ?t«fcable  to  and  prompti  solely  by  the  SC 
whioh  our  temtones  afford^both  for  attLk  and  escai  wT  n.„!J 
fiamre  whether  the  animus  in  which  itTs  Boughr^^^btl^r^^ 
ï;  lCbT^'°*  "^f""*^'  '^'^•*  ^^«*er  the  party  flednrcomen 
mlf^ï  l?*f '^'-  ^^ ^«  *^«  «^*«fi«^  of  the  contrï^Ten^^ 
ïlmTuaeS^"  neutral  gn,und  cannot  under  thr^e  of  ^ 
ftSTV-*    *^t.^M*  """^^^  ground,  and  that  thé  pàrty  fleeine 

Mcuntv  which  nation»  usually  accord.    He  haa  no  richt  to  abn^e 

&e  onïy  pnv.lege  which  our^oil  ^onfers-that  o^mrs^elo 

an^scan^hSfrrT  ^"^  f  *«  "«^*'  ^o^^^fC^  he 

ÏÏvod  he  S  '  ^u\^f  ^.  "«^^""^  ^««  "«"•'  a^d  ttat  he 
supZd  Ikm  J^^  that  asylum  in  safely.  If  within  m 
SSion/nH  ^«/«««P^'-^t^s  and  prépares  for  fresh  acte  of 
«ggresBion,  and  w  not  content  with  finduig  securitv  amûnàt  ohnr«»«. 

£nSh«  r^ï.^^-''"'.^*"'  ^'^^^^^^^'^^^^^^^  °^  otheraj  then  he 

Kn«Jf.  r*r  '  *^  ''TS  overfcome  aa  a  pombatant,  flie8  from 
bS»reX^  S'»  ""'Tî  P^*'%°^  «ecurity-not  one  who  merS^ 
ÏÏt  he«^,l  J  îr*''*^  ^'^"5*^.**  ^'''^'^'  "ûdertakea  to  inflict  an  • 

ÎM^te^ae'r't^  intendeïïI^iiC»  whf  r;^^^^^^ 
gredatory  aets  ^er  the  name  of  w»  ae^g  an  imaginary  line 
&rComwall  I^  put  the  difficiUties  whioh  raiistSSfroinX 
wwnunitj  extendèd  to  guch  acts  thus  :-«  U  mrt  fthfweîer  b^  ' 

Zdva!Sî»!       «und  pnnciples,  is  exempt  from  îte  cciipeiiatinK 
iirîîîîiif''  ^'^  '**.  n«»ghhpr.    Where  t^  territori^if  neighft^r- 


.  ' 


-'1^ 


*4&'< 


«.«nation.arec.te,^^-S^U:^;^ 


•^■■1- 


X 


r 


'  ■•':«;:■.:.,.. 


VH-. 


\  .'■!■ 


848 

arbitrary  line,  witiiout  anv  natural  démarcation,  suoh  as  a  chain  of 
high  moimtaiûsor  a  broad  and  unfordable  river,  and  where  therefore 
a  facility  of  mutual  pdssage  across  the  frontier  limit  existe,  there 
tbe  entire  iiitlependence  of  the  two  territories  for  the  purposes  of 
oriminal  jurisdiction  may  lead  to  a  permanent  state  of  ihsecurity 
both  for  person  and  property.'^         1 

My  leamed  friend,  who  spoke  last  on  behalf  of  the  prisoners, 
has  refeiréd  to  a  jportièn  of  tbe  speech  of  Daniel  Webster,  made  in 
tiie  Senate  of  the  United  State,  in  defence  of  the  Treaty  of 
Washingtoi^  for  the  purpose  of  showing  the  exemption  ef  the 
persons  of  soldiers  from  individus!  reaponsibility  for  what  they  do 
while  acting  under  lawful  ôirdérs.  Nothing  that  was  said  by  Mr. 
Webster  on  that  occanon — nothing  that  has  evei*  been  said  by  any 
authority  on  tiiat  sâfject  has  the  aUghtest  application  to  the  présent 
case.  The  whole  weight  of  the  authorities  cited  in  support  of  the 
principle  contented  for  by  Mr.  Wqbster,  applies  to  lawful  belligerent 
opérations,  as  recôgnisea  and  practised  by  civilized  nations  ;  and  it 
is  merely  begging  thé  question,  to  assume  that  this  transaction  is 
pf  a  lawfiil  character,  ror  the  purpose  of  applying  the  principles 
laid  down  in  those  authorities.  Nor  is  it  correct  to  say  that  Mr. 
Webster  ever  once  in  the  course  of  that  celebrated  speech,  or  on 
any  other  occasion  extended  the  principle  in  question  to  exeû^tron 
fix)m  trial.  On  the  contrary  we  find  bis  exprès*  words  to  be  at 
'page  125—"  That  McLeod  might  insist  on  ihe  same  factsi^d 
msist  on  the  same  4€fonce  or  exemption  at  bis  trial."  This  Cm 
the  answer  of.the  American  Secretary  of  State  to  a  letter  from  Mr. 
Fox,  the  British  Minister  at  Washington  ;  and  further  on,  at  page 
131,  we  find  Mr.  Webster  using  thèse  very  words  as  if  to  set  the 
maiter  at  rest  :— •"  Mr.  Fox  was  told  that  thèse  proceedings  must 
go  on,  until  tliev  yf ère  Judieially  terminated,^*  and*  m  point  of  fact 
^  know  that  they  did  go  on  ;  that  McLeod  was  brought  to  trial, 
and  acquitted  on  the  mérita.  But  since  the  wriiàngs  or  the  sayings 
of  Mr.  Webster  are  referrod  to,  why  did  my  leamed  friend's 
examination  of  the  speech  çome  to  such  a  sudden  terminatién  ? 
Why  did  hehiot  proceed  to  that  farther  portion  of  the  renowAed 
statesinàn's  explanations  on  the  subject  of  t^  treaty,  about  wl^ch 
there  can  be  no  doubt  ;  that  portion  of  hia  remarka  where  Mr. 
Webster  himaetf  tells  us  not  only  the  object,  but  the  efect  of  the 
stipulation  of  this  Treaty,  for  the  mutual  surrender  of  fj/^tivea  from 
justice.  Hère  are  the  words,  at  page  140  :  "  I  undertake 
to  say  Ûiai  the  article  for  extradition  of  offenders  contained 
in  the  Treaty  of  1842,  if  there  was  nothing  elae  in  the 
Treaty  of  anj^  iinpoHM.Tinft,  has  of  itaelf  been  of  more  value  to  tiU» 
couitiàry,  and  is  ôf  more  value  to  the  progreas  of  civiiization,  the 
cause  of  humaoity  and  the  good  understanding  between  nations, 


.î\'  /. 


~  '    849    • 

thaji  can  be  readUy  computed.    Whatwere  the  state.and  condition 
of  this  comiti7,'Bir,  on  the  bordera  and  frontière  atthto  time  of  thia 
OYeaty^?  Why  it  waa  the  time  when  the  '  Patriot  Societies ,'  or 
'  Hunters^I^ges'  were  in  full  opération,  when  companies  iere 
formed  and  officers  appointed  by  secret  associations  to  cafryonwa* 
m  Canada  ;  ànd,  as  I  hâve  said  alreàdy,  the  disturbances  were  so 
fréquent  a«dso  threatening,  that  the  United  States  Government, 
despatched  General  Seott.ta  the  frontier  to  make  a  draft  on  New 
York  for  inUitia,  m  order  to  préserve  the  peaoe  of  the  border.  And 
now,  Su-,  what  waa  it  that  repressed  thesê  disorders,  and  restored 
tte  peace  of  the  border  ?    Nothing  bût  this  agreement  betweeû 
the  two  govemments,  thatof  thèse  '  Patriote'  and  '  Bambumers' 
went  from  one  side  to  the  other  to  destroy  their  neighbor's  propertv 
ta^ng  aU  the  tune  to  bring  on  a  war,  (for  that  was  theiç  object)  * 
they  shouia  be  dehvered  up  to  be  punished.    As  soon  m  that 
provision  was  agreed  to,  the  disturbances  oeased  on  the  one  side 
aad  on  the  other  they  were  heard  of  Winore.    In  the  formation 
of  ans  clause  of  the  ïreaty,  I  had  thradvantage  of  consultation 
^th  a  venerâble,fnend  near  me,  one  of  the  members  of  Michigan. 
«le  pressed  me  not  to  forego  the  opportunity  of  introducing  some 
«uch  provision  ;   he  examined  it,  and  I  wiîl  ask  him  if  he  knows 

?Z    {^"^  i^'^^x...   JS^®  instantaneous  suppression  of  thèse  border 
difficnlties  than  this  Treat^  provision." 

WiU  any  one  uridertake  to  elevate  thia  St.  Albans  outrage 

above  the  character  of  the  misdeeda  hère  described  by  Mr.  Webster 

himself  as  within  the  express  provision  of  the  Treaty  ?    Will  anv 

one  contend  that  it  partakes  of  the  character  of  war  half  as  mnch 

as  -many  of  those  expéditions  ?     Having  now  laid  before  the  Court 

the  View  of  this  case  which  my  duty  compeUed  me  to  take,  I  shaU 

abstaon  from  an^  further  observation  not  absolutely  caUed  for  bv 

the  circumatances.    I  feel  that  any  sane  man—to  say  nothing  of  a 

grave  magistrate,  must  be  expected  to  caricature  his  imprewions 

before  he  can  pronouj^ce  the  aot  of  the  prisoners  to  be  apparentlv 

ian  act  of  war  m  itself.     I  feel  that  whatever  it  couHrunder 

I  any  circumatances  hâve  been  oontended  to  be,  the  peouliarity  of  ita 

I  Jttipn  on,  iMd  émanation  from,  neutral  territory,  completely  deprived 

it  of  aU  p^le  hwful  character  ;  and  I  feel  îhat  we  ahaîl  be  (rana- 

çendmg  our  proper  fuiM|s,  and  assuming  a  responaibiUiy  and  a 

junsdiction  jre  do^no^i^pKqr  if  ^g  undertake  to  aay  that  we  will 

appreciate  the  guilt  or mâcence  of  the  parties  ooncëmed,  and  do- 

«de  liât  with  aU  thè8«r  queationa  untried  and  untriable  before  na 

m  will  not  exécute  thia  Trealy,  and  aend  the  priaonelta  for  triai 

«  *»«.  »  /VW.O  it^aaa^be  j|ad.^li^aa  beeninainuated  aore  thammce"" 


U 


f  • 


v^' 


j.  „,.>  _^-  '"^^  jC"'.  *•  "■"  •***"  inBiraHKiea  more  tbammoe 
m  the  course  of  this  cA^  that  thia  country  ia  aoting  under  fear  and 
pressure  in  thia  matter.'SPuoh  topica  are  not  naaal  ini^i^iah  Courts 


<  Ji-KS  ÏHi  'l'i' 


-itç.-f3 


ifiii 


1  ffii 


il  imW 
P  IIVj , 


% 


of  Justice,  aot We  fer  too  rendolent'of .  the  hustiigs,  and  of  polîtf: 
ejana  of  tke  wcond  table,  to  be  welcome  in  thèse  Mh.  If  sÏÏ  a 
tibngi^re  possible  indeed,  as  that  aiud||^thi8  country  Zuld 
forget  his  duty  to  the  Laws,  froi^mmmm^  fi««a^^         ^ 

woui4>  diifiLt  t.  iBia^'  /fSŒsfrs  irrthe 

Wene^  dut  dares  not  expreas  ;  but  leaves  it  tô  'be  darkly  u^deN 

&  ^^i-T  '^^^l^^'.^y  does  his  duty  in  such  an  emer- 

.«Jk  ^bk  to  the  odious  and  calunmious  imputation  of 

b^^^ry^^i'^^J^T'?^"''^'^^'-  Allusion  hàsWn  made 
iUÉi^^  •^'^'  *^-  ^'«^«n'ûe»  to  what  he  is  pleaaed  to  Jl 
^^portantcurcuDMtances  that  hâve  occurred  during  your  Honor's 
S^  The  onejs  the  exécution  of  Beall.and  the  other  a  letter  of 

^cZTf  5gf  ®^  «"«OMwtenoy  between  the  judgment  of  the  UpU 
Canada  Ju4géi  and  the  act  of  the  Aiperiean  Gbvenunent.  No  E 
mconsistenej  easta.  Beall  was  ,xec4éd  as  a  spX  mitiaJ  lai 
ïl  •''•'S'  »  ^f««««>  Canada,  or  demanda  LsShjm 
i^can  Goyenunent.  ^  Burley  was  surrendered  and  properly^tried 
f^the  o««i^or  at  dl  events  is  to  be  tried  for  it,  for  whfch  he 

St  M^ri.'^  Judges  of  Upper.Canada 'never  dedded 
^at  BeaJl,.who8e^e  was  never  before  them,  did  not  comntit  rob- 

,  be^  ;  they  only  Jbeld  thivt  Burley  did.  The  dUpatch  of  3  RuT 
seU  seenis  tobe  tak.n  a.  a  judicà décision,  liSffaS  c^S   S 

,     «QtheIloawikewa8anactof*iwfà.war.  It  is  lu^  sûch  thiniThe 

îirvS  1  u  "^W?**S>J'*'y  were  Obligée  ttf.employ  the  ordi- 
wy  offiaal  ^eJKl  mé^  their  «unister  ijf  L4<m  appK 
the  Foreign  Beérf^im%t  information  on  a  ^mS^oiSTn^irl 

laiXî^2Xt;2âb& 

SSi???*^^  '^î*'  proesidfroin  h  to  perforai  an  a«t  i 
^bbei^  ^ftlwrful  auttority  to  do  the  deed  the  priLeSaï» 

%  V^u     5    -^^  ^,  ****  ff^**t  disadvantaM,  in  apeahinrîE  the 
VMW  of  t^  «w(,  roociiw^y  before  your^onor.    To  yDnTiudiiS 


Impartial  jostioe  b«fcw6en  the  parties.  "n— «^  /«n  wiu  «^ 


u  <m^ 


^^i 


f  861 

_ft«  «y  .^^••f^'^'^'^^ï*^°«'^'«  *>«»»alf  0^        Crown. 

■~~f        I     A  ^*y  '*  P^**^  y^*^  Honor^CoMidering  the  length  of 

*uûe  already  dévote/  to  the  argument  of  thia  cas^-the  SJ 

i^J^  "îf  havepreceded  me  in  the  discussion  of  it-and  mo^ 

Jjfculariy  the  circumstanoe  of  your  Honor's  récent  iUness,  re™ 

Henor  a  indukenoe  for  a  short  time,  pMpiaine,  as  I  do  to  C  - 
myjelf  entirely  to  the  légal  asçea  of  4e  <Se.    iTave  no  dSi^HÎ 

tt  appSj,d  to  the  efforts  of.thoeewho  aspire  to'be  eloquenS  • 

~  3S  bl^'rir  w  *^'  f'^^  i»  eègagod  in  défense  of  S 
H^r^Aî-V°5'  ^1"""  ^Tr  ^"•«'^*  ^»>*t«^«r  ^itl»  jour   . 

iïïrKi^li^  nWiutjr^  use  my  beat  efforts  to  copvince 

-yo«rg|gor,  that  this  demand  la  just  and  reasonable  ;  that  the  laW 

KJ'^'ffii    .T**"^  ^  administer,  imposes  upon  you  the  oWi<mtion 

^^c^m%|  the  pnsoners  for  extradition,  W»d  that  this  demand 

fte  treat^o-HJgatilM  of  our  Sovereign  with  a  foreign  govem^nt 

In  ail  dvdued  cj^nities,  the  necessity  for  the  exercle  of^Hôr: 

Mctive  power,  l^momplish  the  suppression  of  crim^  and  L 

pumshmexrt  of  offenderè  haa  been  unTversaUy  adSd     ^iot 

wluch  eveiy  tiung  would  be  anarcby  and  confusion.     Thé  exerd^ 

«f  this  power  w  one  of  sovereignty  ;  the  object  to  be  attained,  is  the 

peace  ai^  ^l&re  iif  the  cûmmumty  at  large.    In  securini  tC 

eveiy  mdividual  member  of  society  is  deeply  interested;  the  safety 

rfhis  persott  and  m^perty,  being  the  équivalent  aecorded  tohim, 

fer  the  saon^ea  £e  makès  m  contribuâng  his  share  towards  the 

atfntenanceofthesoc»!  compact.   In  oriminal  matters,  the jurisdiô- 

Jon  u  oonaider^l  oca^,  the  place  where  the  offence  wiL  committ^ 

Jjing,  w  »  gawr^nde  admitting  of  but  few  exceptions,  the  t^ 

rfjunsdiofacn  \ pôltee  it  is  that  as  between  nationà,  it  Vas  at  om 

bme  consjdwedjhe  ,^^  of  a  nation  in  whose  territorv  the  crin». 

»»1  may  haiie  ta^en  rèiîige,  to  aurxender  him  to  the  authorities  of 

tfceoth^,Tih«wla*8heiaayhaveviokted.     This  point  gave  riae 

to  confli^  opuuona  apongat  jurista;  th«  œftjority  being  of 

feiî^  I^S*"^^«^i  ^  f  e,pedienoy/the  exkadli<S^ 
<tf  oniauiala  eould  not  be  ohumed  as  a  matter  of  ridbt,  in  th« 

^ncô  oTtiwrty  atipdfttiona.    In  this  caae,  that  queatiotdoes  not 
«^  as  ^  fllgm  yow-atgedJs^  baaed  «pon  -àtt  «xiating  treatr— 
between  Oreat  Tôntam  and  the  United  Statoa  of  America/  I^w 
MDe  to  IfaA  ^oaaideMtion  of  this  chûm  fer  extradition^  and  I  am 


^'m 


r  i 


'      .1 


fi 


k 
'^%. 


.  ,   ■  ! 


ikli 


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W--- 


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remmdibd  by  that  circuTOtance  pf  what  took  place  at  the  olose 
of  this  argument  yeaterday.  I  Was  aaked  by  geveral  pewoM,  how 
I  could  exçect  to  find  a  single  argument  to  offer,  whioh  had  not 
been  already  advancéd  and  fully  discussed  "by  the  three  leamed 
gentlemen  who  preceded  me.  I  feel  the  juakice  of  this  remai*.  for 
certainly  eyery  possible  effort  haa  béen  made  to  exhaoât  the  subject. 
Without  wishmg,  however^-to  be  conaidered  egotistical,  I  may 
be  permitted  to  say,  that  I  bave  stilî  some  important  poiûta  hitherto 
unnoticed,  to  urge  upon  your  Honcir's  considération;  TheyTmj 
oontained  m  thia  pnnted  documenti  being  the  propoeitions  and 
authorities  I  bave  prepared  in  a  conçue  form. 

Hère  Mr.  Carter  handed  to  the  Judge  the  proporitions  and 
quotations  from  authorities,  and  proceeded  to  say  that  he  had 
steted  to  bis  Honor  that  the  Treaty  between  Oreat  Britam  and  the 
Umted  States,  might  be  considered  as  the  very  basia  of  thiç  appli- 
cation.  But  bis  leamed  friend,  Mr.  Kerr,  had  considered  it 
necessary  to  embodv  in  bis  fifth  proposition,  the  pretension  ihàt  the 
Umted  States  no  longer  existed,  because  five  or  six  States  hàd 
Jeen  admitted  into,  and  nine  or  ten  States  had  geceded  trm  the 
Umon  smce  the  Treaty  with  Great  Britain  ;-and  that  its  sovereignty  ' 
had  by  the  existence  of  the  civil  war  been  dissoïved.  Mr.  Cw-ter 
demed^  proposition,  whioh  was  altogether  devoid  «f  any  founda- 
tion.  The  accession  of  territory^  or  the  existence  of  civil  war 
might  affect  the  internai  organization  and  government  ôf  a  State, 
but  m  80  far  as  Foreign  States  werè  concemed,\  did  not 
alter  ite  peisonalty,  or  its  extemal  relations  towards  mm.  In 
support  of  this  doctrine,  the  leamed  Counsel  quoted  from 
Lawrence's  Wheaton,  page  89— «  A  State,  as  to  Âe  individual 
members  of  whieh  it  is  composed,  is  a fluctuatingbody  ;  but  in  re- 
spect to  tiie  sooiety,  it  is  one  and  the  same  body,  of  which  the  exist- 
ence  is  peipetuaUy  kept  up  by  a  constant  succession  of  nêw  mem- 
bers.  T^  existence  continues  until  it  is  interropted  by  some 
change  affecting  tiie  bemg  of  the  State.  If  this  change  be  an 
mtenud  révolution,  merely  altering  tbe  municipal  constitution  and 
form  of  government,  the  State  remains  Ae  same  ;  it  neither  loses 
aiiy  of  its  iightB  nor  is  discharged  from  any  of  its  obligations."— 
Also  page  86.  1  Phillnnore,  p.  18»— «  But  a  State  may  undergo 
most  importantand  extensive  changes  trithout  losingito  peraonalty." 
At  p.  140r-"This  vital  principle  of  International  law  is  a  neces- 
sary and  prmcipal  conséquence  flowing  from  the  doctrine  of  the 
moral  pwjonalty  and  actiial  mterôommunion  of  êtetes."  Halleck, 
p.  72  and  78— «  A  State,  as  to  tiie  individual  memberS  of  whioh 
it  is  composed,  js  a  flttctuating  body,  baing  kept  m»  by  a  constant^ 
succesfflôn  of  new  mémbers;  so,  also,  it».  form  of  goTeniment  and 
mumoipd  constitution  may  be  subjeot  to  fix>quent  aliénons  and 


■£■ 


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II. 


«fis    ' 

diMgea  in  tJw  constituent  part»  of  the  body  politie  vaA  !ii4h«l* 
Wlatwûii  to  each  otber  do  noraffeofc  tho  chaS^^ie  Udl  iSSf 

toniU  law     The  ^tate  winaini  the  same  p^Htici  Sir  «^^. 
«i«»bty  .8  destPoyed  by  pterruption  in  it»  J^t^n^lïî'^SÏÏJS 
«ddiatinctwciety;  and  it  nefther  looaes  «y  of  ?ts^5iSÎS^S 
Asoharged  from  any  of  its  <^bKgationB,  bv  anv  b^?  «ÎLSSLI 
dmnge  or  internai  ?e.olution:"  *\  fiS^t?  oSTiSfl^* 

ym  ^at  the  T«aly  between  Qt^  Britaiii  to/the  ifnitod  sÏÏÏ 
for  the  surrender  of  offendere,  was  not  in  anv-wa»  SmrïîSîi     - 
Jjfected  by  the  e^stenœ  of  civU  wii^Sn^ô  Sr^tt  ftT 
ktter,  or  by  any  change  in  ita  i«temid  ;m^rt^^^Z>^!t  ' 

jell  to  be  uaderstood,  at  a  period  when  alter^tfons  in  the^Ll 
tH)ns  of  goveriHnente  M  revoluUons  in  statea  aw  fiS Tt^S^ 
W  a  cleas-  position  of  the  law  of  nations,  thartSf  LT ^^^ 
affected,  nor  positive  obUgations  of  any  kind  with^Seî  wwe« 
,  «r.  with  ci^itoi»,  weakened  by  any  8u«h  mutatir    ^25 
neither  loses  any  of  its  lighte,  nor-'is  discharS'from     '   Jf 
m.  ^"^f  H-  ?  ?^°8e  in  the  fonn  of  ite  cîrfgo^St 
Tbe  body  pohtic  is  stiU  the  aame,  tihough  it  may  h^e Td^SikTI 
o^^communication.''    The Lne  S^trine ^.it V  ffe 
Ist  PhjUimore  p^  143.    He  came  now  to  the  ipost  im^Tcoî 
^erabon,  embodied  m  his  tiiird  prepoBition;whioh  wmTS  <ÎÎ 
•ifect:— The  Queen's  Prochunation  oTEv   IsS  rf«TSL      *u 
neutjlity  of  the  nation  during  the\ffi^i^,^&*Jj 
Ae  Government  of  the  United  States  and  certain  sXs^îS 
^emselyes  "  the  Cojfederate  States  of  Ameriij  iT^^îJ^^g 
of  a  national  nght,  the  efieot  of  which  at  most,  is  to  rocaid TS 
PWfa«.  as  entitled  to  belligerent  rights  or  privU^jJs  of  Zmer^* 
but  thèse  hghta  must  not  be  confoSnded  vrith  thfriirhte^Kld' 
loges  res^ti^  from  the  doctrine  oîrecoa^"  ZL?to 
reeogn^  the  Confederate  States  m  ,#Snendent  làvflrïï^,*» . 
^d  au  courts  and  judges  are  homM'^CZ:^;^ 

r^OSie  gloirâ^  ,rere  oited  m  support  of  this  D»nMi 

Jcjc-HaUeck,  p  76, 76--«  The  recognitionTCe  bdepc^^^ 
mhJlT^^  °^  *  revohed  province  by  otiier  foreigTSu 
^^^y^J^^^."^  established  in  ftSt,  is  therefow  aT^ 

for  itse^ 
l^slatii 


itself;  but  this  détermination  must  be  made  by  the  iov«^ 
«labve  ôT  executive  power  of  «w  state,  aad  not  by  »n/«K£ 


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864 

o 

dinate  authority  or  the  private  judgment  of  indiyidual  subjects. 
And  until  the  independence  of  the  new  state  is  recognized  by  the 
govemment  of  the  conntry  of  which  it  was  before  a  part,  or  by  the 
foreign  state  where  its  sovereignty  is  drawn  in  que3tion,  courts  of . 
justice  and  private  individuals  are  bound  to  consider  the  ancient 
state  of  things  remaining  unaltered."  L's  Wheaton,  p.  47 — 
(Same  doctrine.)  1  Kent's  Com.,  p.  27  (note) — "It  belonga  to 
législative  or  exçcutive  power  (according  to  the  character  of  the 
govemment)  to  recognize  the  independence  of  a  people  in  revolt 
from  their  foreign  sovereign  ;  and  until  such  acknbwledjgment  be 
made,  courts  of  justice  are  bound  to  consider  the  ancient  âtate  of 
things  as  remmning  unaltered." — City  of  Berne  v.  Bank  of  Eng- 
land,  9  Vessey,  347  ;  the  Mtinillas,  1  Ed,  Àdjn.  R.  1  ;  Yrisarri, 
V.  Cléments,  3  Biggham,  432  ;  Thompson  v.  Powles,  2  Sinipns^lO^; 
Taylor  v.  Barclaiy,  ib.  213;  Rpse  v.  Himely,  4  Craûch,  241; 
Hoyt  V.  Gelston,  13  Johnston,  139,  141  ;  United  States  v.  Pal- 
mer,  3  Wheaton,  tilO.  2  Phillimore,  p.  37  :— ^'*  It  is  a  firm^ 
established  doctrine  of  British  and  North  American,  and  indeed  of 
ail  jurisprudence,  thafc  it  belongs  exclusively  to  govemments  to 
recogize  new  states  ;  and  that  until  such  récognition,  either  by  the 
govemment  of  the  éountry  in  whose  tribunals  a  suit  is  brought,  or  ' 
by  the  govemment  to  which  the  new  state  belonged,  '  courts  of  jus- 
tice are  bound  to  consider  the  ancient  state.  of  things  as  remaining 
unaltered.'  "  >• 

ïhe  citation  of  thèse  authoritiesmuq^e  sufficitent  to  establish 
conclusivelyr  the  proposition  he  had  submitted-  But  he  would 
remind  hi»  '  j(l6nor  that  Mr.  Laâamme  had  end^vf^red  to  apply 
precisely  th^^Swme  principle  to  another  proposition.  He  had  also 
endeavoreçtto  draw  this  déduction,  that  the  prisoners  would  bç 
treated  as  robbers  ;  but  his  Honor  had  not  to  deal  with  the  consé- 
quences that'iûight  ensue  in  any  coxmtry,  but  to  deal  with  the  case  as 
it  presented^itself  before  him.  ïhe  learaed  Counsel  now  came  to 
hisfourth  proposition,  which  waa  that,  applying  thèse  uncojitroverted 
rules  of  jurisprudence  to  thç  caSe,  the  pretension  of  thé  prisoners' 
counsel,  that  Bennett  H.  Young  was  a  duly  commisaioned  officer  ii| 
the  service  of  the'°Coi^ederatQ  States,  and  hence  irresponsible  for 
the  acts  perpetrated  at  St.  Albans,  and  that -this  Oijurt  was  bound 
to  take  notice  oftfaiat  commissiop  as  proved,  was  an  imtenable  one, 
and  at  yariance  wiUi  the  jurisprudence  oî  English  and  Amçricaji 
courts.  The  Court  was  bound  tcf^disregard  thia  comdnwiou  and 
the  évidence  relating  .  tl^reto, .  as.  8h(fwn'%  the  authorititt^  he 
wouldoiie.  To  adopt  the  pretension  of  the  counsel  fot  ti^^àbn- 
ers,  would  be  the  assumption  by  a  Ju(^e  of  législative  or'J^j^l^ve 
powers.  appertH^ny-Bolely^to  &ë  Executive  Oovefinml^^d~ 
virtuaUy  io  recognize  (which  England  hithertQ  had  not  done^  the 


;?■ 

*y    . 

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t4    >- 

1* 

;   ■      ^i>*-   "'«T  . 

'    ; 

A               '^.>.*-,..,- 

\ 


p.  43  (note)  it  was  stated  :-«  But  iris  to  fil        u  '  ?^^^^*«n» 
the  question  ofbelIigerentri<Tht>,„«!p  f  '^««^mbered  that  in 

of  Mependence    f   2cS^^^^^  Normal  ackhowle/gment 

with  the  Courts  •  aiid  îf  „««  1     3   ,■     Government,  ind  net 
Court  oftheU^tedStaLTl^^^^^^^^^         ^'^^  ^^^  *^«  %reme 
condamnation  bvrCourfnf  A  /  •'  'V  ''"^^^^  ^  *h«  ^^lidi^  of  a  ' 
United  8£iaï?orhitheiTt  '^f^'^^^^  ' 

Mexican  Republlror  Stafp  n^  acknowledged  the  existence})f  a 
not  copaider  Wailv  fol  /^'  ""'^a  ^T"'  «"  *h^*  ^îourt  could 
ComSon  ofS  Slfc  or  S  Je  ' ''  S'  'f^'^%o^  «ag  and 

vpi^^r^s^^  &tf m^'it^r^^  ^ 

peared|hat:tOpreveétademurrer  tZhwr-/*  "'^J'  ^^^'^o  ap- 
BHtAbir  Afl  «„  ;-j»      j  "r  ^^  *^P*'"  "»a  been  recognijsed  bv  (îrpaf 

intJMK?^'  A     r  ""«Sf  >«n  'S  false,  and  not  to  give  ît  the 

What  waa  done  there  i^as  tm-  ot»™-   •     ^   ?.  J"<"cial  décision. 
>  *»»«i«  ï«i^Çwn.8tr%tl^^*d  hJ8  posiS     ^'  "^  *^'  P"^''P^«» 

3taS;:stderxShi;tei^^^  ' 

States  of  AmericJ-iSEït^i    ^  W  obhgahons  wilblhe  United   ■ 
oui/,  and  thatthe  otherMU^nT?  *       ^  *  «wn  Oovemment 


/ 


power,  or  a  Beatral  nirtion,  oan>  ' 


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not  constitute  themselves  ihe  judges  of  suqh  violaticm.  It  suffiees 
to  show  the  fallacj  in  this  case  of  such  preténsions,  to  state  that 
thèse  considérations  could  onlj  ârise  in  what  is  called  a  perfectwar 
hetween  two  distinct  nations,  having  a  separate  national  character 
and  equal  rights  of  sovereignty,  quoad  the  neutral  nation.  He 
thought  the  mère  enunciation  of  that  pi'opoàtion  was  sufficient 
without  entering  ihto  a  discussion  of  it.  What  was  the  use  of  Ûnd 
leamed  Counsel  on  the  othët  side  advancing  principles  whic^ 
could  hâve  no  bearing  on  the  case.  Even  takîng  it  for  granted 
that  the  Judges  in  Upper  Canada  gave  as  a  reason  ^r  their  deeision 
that  there  had  been  a  violation  or  déviation  of  àuthority,  it  se^ned  to 
him  that  the  Court  in  that  case  was  bound  to  do  just  what  he  now 
called  upon  his  Honor  to  do.  Waa  this  not  a  treaty  with  the  United 
States,  as  binding  upon  thèse  prisoners  as  any  one  else  ?  The 
décision  in  the  Burlej  case  was  right  ;  the  Judges  were  bpund 
to  consider  the^ancient  Bt«ite  ^f  things  as  unaltered.  He  now  came 
to  the  second  branch  of  his  c^se,— Bennett  H.  Young's  commission 
considered  from  another  point  of  view.  ïhe  alleged  facts  were 
thèse  :  The  commission  bore  date  16th  June,  1864^  purported  to 
be  signed  by  James  A.  Seddon,  Secretary  of  War.  Letters  of 
instructions,  bearing  the  same  date  and  signature,  were  produced, 
directing  him  to  organise  "  a  cpmpany  not  to  exceed  twenty  in 
number,  from  thpse  who,  belonging  to  the  service,  are  at  the  time 
béyond  the  Confederate  States."  Also  "  to  proceed  without  delay 
to  the  Britîsh  Provinjes,^'  where  he  waa  to  report  to  Messrs. 
Thompson  and  Clay.  A  letter  of  C.  C.  Clay's,  dated  in  October, 
1864,  addressed  to  Lieutenant  Young,  approved  of  his  suggestion 
to  make  a  raid  upon  St.  Albans.  It  was  proved  that  Mr.  Clay 
had  been  for  some  time  previoos  a  résident  at  St.  Catherines,  in 
Canada.  There  was  évidence  to  show  that  the  pi^soners  resided 
in  Canada  prior  to  the  19th  October,  1864,  and  that  Young,  in  the 
&11  of  1863,  attended  the  Universiiy  at  Toronto.  Assuntmg,  for 
the  purposes  of  argument,  ail  thèse  matters  ixi  be  concluaively 
proved,  their  légal  effect.  could  be  determined  only  by  a  careful 
considération  of  thè  law  of  domicil  by  a  foreigner,  a  subject  of  one 
of  the  belligerent  powers,in  the  territory  of  a  neutral  nation  ;  and  the 
lawB  of  neutralitj^as  a^ecting  acts  of  hostility  committed  by  him. 
The  following  propositions  ami  authorities  were  submitted  as  eon- 
clusive  : — 6m.  That  prior  to  the  Isommission  of  the  offi^noe  charged 
against  Bennett  H.  Young  and  his  assoeiàtes,  t^e  évidence  estab- 
Ushed  that  they  were  domiciled  in  Canada,  owmg  tempbranr  and 
looid  alle^anoe  to  theBritish  Crown,  j)ubject  to  its  laws,  snd  bound 
equally  wiUi  ail  Her  Mlyesty's  subjeote  to  a  strict  observance  of 
the  laws  of  nentrality.    There  was  no  groand  whatever  for  the 


aaalogy  atteipptéd  tû  'be  made  by  the  pbsoner's  counMl,  between 


^ 


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ji   '. 


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^867 

and  the  consec^uences  resulting  from  it.    VaS    b    1    1  To 

oountry.    Bound  to  the  soeieto  by  their  reaM^n™    tl. 

«.  obUged  .0  drf«,d  ft,  beoau»  it  g-inteCp^oUi'loS 

r  ifi    '!î!;''*^''^^'P  ?t  some  future  period'.'*     1  Ken 's  S 
pitce  ia,  that  the  party  is  there  rtmwo  manmdL  and  it  ia  nJn  h\l 

he^eUo4 


:  t 
I    • 


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f 


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ï. 


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868^ 

th«;  place  of  birth,  becomes  the  test  bf  nation^  character,  has  been 
reçeatedly  and  explicitl^  admitted  in  the  Goahs  of  the  United  i 
Sratés.  If  he  •  résides  in  a  bellige^ent  ccmntry,  his  property  is 
liablè  to  capture  as  enemy 's  property  and  if  he  résides  in  a  neutral 
country,  he  erifoys  ail  the  privilèges,  and  is  subject  to  ail  the  incon- 
Vëniencesof  neutral  trade.  He  takes  thé  advantages  and  disad- 
vantages,  whatever  they  may  be,'of  the  country  of  his  résidence. 
Thê  doctrine  is  fottnded  on  the  principles  of  national  law,  and 
accords  with  the  reaaon  Stfld  practicaof  ail  civjlized^  nations."  In 
thé  case  of  the  Danous  (cited  in  4  JRÀb,  Rep.  265,  note)  the  rule 
was  laid  doWn'by  the  English  House  of  Lords j  in  1802,  in  unre- 
siricted  terms  ;  and  a  British  subjeet  résident  in  Portugal,  was 
allowed  the  benefit  of  the  Portuguese  chàracter  so  far  as  to  render 
lus  trade  with  HoUand,  then  at  war  with^ngland,  not  impeàchable 
as  an  illégal  tra,de.  The  same  rule  waS  àfterwards  %pplied  (in 
Bell  V.  Reid,  1  Mâule  and  Selw,  (726),  to  a  natural  bom  British 
flubject  domiciled  in'  the  United  States  ;  and  it  was  held,  that  he 
might  lajvfully  trade  to  a  country  at  war  with  England,  but  at 
peace  witJh  the  United  States."  The  effect  of  thèse  authorities 
was  to  shpw  that  ail  incursions  upon  a  country  where"  civil  war 
prevail  were  unlawful,  and  were  to  he  considqred  piratical  incur- 
sions. Bennett  Ô.  Young's  commission  thgn  was  of  nô  avail  ,whair 
ever,  and  he  was  amenable  for  this  ofience  the  sametas  if  it  was 
committed  by  ooe  of  our  subjects.  ^  Why  should  his  Honbr  bê 
calied  upon  to  apply  a  différent  rule  in  this  case  to  a  foreignei*  from 
that  whieh  would  apply  to  a  British  bôm  subject  ?  Both  had  to  be 
dealt  with  in  the  same  ~way.  Th^  ctocWine  was  founded  not  only 
on  law  but  also,  op  equity.  It  w*s  no  answej;  in  the  prisoner's 
mouth  to  say,  Oh,  1  left  Cani^  and  went  to  the  United  States  to 
commit  this  àct  of  déprédation;  but  I  am  a  Confederatè  sddier, 
and  acted  accbrding  to  insfructions  ;  and  what  woîdd  be  con- 
sidered  a  crime  in  a  British  subject,^  is  justifiable,  in  my  case. 
Such  a -position  was  ajtogether  untenabl».  It  was  contendéd 
that  Bennett  H.  Young  was  a  duly  commissionéd  officer  in,  the 
service  of  the  .Confedérate  States,  and  that  the  polioy  of  Great 
Britainhad  also  b^en  to  afford  protection  to  political  reftigees.. 
This  pretension,  however,  had  no  application  tp^  the  case,  as  the 
évidence  established  that  he  availed  huûself  of  the  asylum  afibrded 
to  him  by  his  résidence  in  a  neutral  terntory,  to  commit  dépréda- 
tions in  a  neighboring  State  on  terma  of  amîty  vith  England. 
Thèse  aots  are  .to  be  judged  by  the  municipal  crimmal  code,  being 
•  also  prbhibited  by  the  law  ot  natio^.  In  suj^rt  of  fais,  argument 
the  leanjied  counael  citedr.l  Fbillimore,  p.  J.90 — »*Upoii  the 
aairyo  pmciple,  "       '         "     '  .•».._.- 


-  a  ri^t  to  afford  rofegtntè^lilw^ 
,   6xpelled  govemors,  (^  aven  theft^i^  of  rébellion  flying  ^iào 


^1 


•'  ♦•?. 


.»  -^ 


.■-v" 
.^'^- 


T»  ♦, 


.à't^'^'^i^ 


859       . 

aBother  country,  she  is  bound  to  take  ail  possible  care  that  no^ 
hostile  expédition  is  concerted  in  her  territories,  and  to  give  ail 
reasonable  guarantees  on  this.  subject  in  answer  to  theTmc^ 
^ces  of  the  nation  from  which  the  exiled  bas  escâped"'  At^. 
iyi_  j^or  it  never  can  be  maintained  that  however  much  a  stnte 
maysaffer  from  piratical  incursions,  which  the  feebiress  of  the 
executive  Government  of  the  country  whence  they  came  render^ 
it  incapable  ofpreventing  or  punishing,  that,  until  such  goveiZeTt 
shall  voluntanly  acknowledge  the  fact,  the' injured  stfteTarno 

«7  •W/V'^'^u  *^'*  «"''""*y'  ^^^«h  ''^  neighbor's  goverament 
admits  that  it  ought  to  enpy,  but  which  that  governmeft  is  unai 
.toguarantee'      At  r,  304  was  to  be  found  the  following  portil 

,-n  ?Jr''\^'^'^"r  ^^  ^'l^  I^yndhurst:-»  Fôreigners^eSng 
m  this  country,  a«  long  as  they  réside  hère  under  the  protection  of 
ths  country,  are  considered  in  the  light  of  British  subje'cts   or 
J^ther  subjects  of  Her  Majesty,  and  are%unishable  by  theSnaï 
aw  prec«ely  m  the  same  manner,  to  the  same  extent,  and  under 
the  sam^  cfOnditions,  as  natural  hom  subjects  of  Her  Maiestv  " 
B^nP^Tv**"  ^^  °i"th  proposition,  namely,  that  a^suming  that\ 
7^^    ;  J^""g„^,^  »  duly  commiSâiohed  officer  in  the  service- 
of  the^Confederate  States-that  he  came  to  Canada  for  thepurpos^ 
of  carrymg  on  hostihties  accordmg  to  such  instructions  as  he  raight 
reçoive,  and  that  his  àéts  at  St.  Albans  ^ere  performed  in  obedTefce 

I'srI  '""rST^^^  ^^  ^^'  ^°°'  ^-  ^'  C  Vs  letter  of  6th  Oct£r! 
1864;  stiU  the  pretension  of  his  Counsel  that  thosé  açts  were  to  be 

•  K;Su!f  f  "^^f  ^^arfarelegitimateWrformed  in  obédience 
to  orders  he  waa.  bouud  to  obey,  and  sucÉ  as  to  entitle  him  to 

mmunity  M  a  beUigerent  8oldier,%as  altogether  at  variance  with 
thé  rules  ef  mteimational  law.     Thèse  rules  fumished  a  complète" 
Miswectothis  pretension     First:  that  a  belligere^t  state  possessing 
nghte  Qf  sovereignty  (which  the  Corifederate  States  did  not)  could 
not  by^mmission  or  otherwise  authorize  acts,  the  performince  of 
which  mwlve  a  violation  of  neutrajity  and  the  c^missidh  of  a 
S?°^tï.  ^condly  :  àat  Young  ras  n^t  bound  t«^bey  such  order  ; 
ttie  orddr  itaelf  màai  m  Canada  being  -a  viplkti<to  of  law,  interna^ 
tional  and  municipal,  aud  affording  no  justification.     Thirdly      ■ 
beUigeMpts  who  did  not  4»pect  the  neutrality  of  a  State,  commit 
f  violation  of  international  law.    He  (^soted  HaUeck,  p.  496-1 
JNo  authority  can  require  of  a  subordinate  alrëggliëroas  &r  cHm^ 
inalactm  anV  caae,  nor  cap  the  subordinate  be  justiÇed  in  its 
pejtf^nje  by  a«y  order^  of  his  superior..»    1  Kent'é  Com.,  p. 
1^—  J.Tiere  is  ^©exception  to  the  rule  thàt  every  jroluntârv 
ent^iye  mto  neutral  territory.  with  hostila  w......^^^,  :/  .u„i..x-,!i 


f    « 


S 


pnrpnBggjJg  ahaolntftly. 


^mpopei 
^«iii*    -  J       i  -,  ^- ^"-"^™  tireasë  d-H^e  Anna,'  th^ 
,  .Ito^jr  of .  wutral  terptory  w^a  ftdly  àaserte^ana  vmdicated- 

1 


/              • 

■  V     f  '    ■ 

* 

*" 

•s» 

1   „    • 

-  i.    "! 

t 

V*-;" 

if-'    .  . 

.î'^'J^ï'"!" 

"■M 


»•■ 

uJ 

I'!l 


î„  < 


i^fr-^ 


MX 

"i 


860 

and  restoration  made.  of  property  captured  bj  a  British  cruiser 
near  the  mouth  of "^tiie  Mississippi,  and  within  the  jurisdiction 
•  ôï  the  United  States.  It  is  a  violation  6i  neutral  territory 
for«  a  belligerent  ship  to  take  her  station  within  it,  in  order 
to  carry  on  hostile  expéditions  from  thence,  or  to  send  her  beats  to 
capture  vessels  beyond  it.  No  use  of  neutral  territery,  for  the 
purposes  of  war,  can  be  permitted.  This  is  NJie  dootfine  of  the 
govemment  of  the  United  States."     It  was  declared  judicially  in 

"   %.     England,  in  thé  case  of  "  The  Twee  Gebroeders,"  (5  Rob.  |tep. 

■^x.^  873)  ;  also  3  Phillimore,  pp.  334  and  337  ;  Halj[eck,  pp.  517  ï^d 
623  ;  Vattel,  b.  3,  c.  7,  aec.  138.  He  would  also  quote  from  pp. 
16  and  17  of  Leiber,  on  guérilla  warfare.  Mr.  Leibey,  as  a  matter 
of  course,  did  not  prétend  that  uniform  was  easentialïy  necessary  to 
constitute  a  man  a  soldier.  On  the  contrary,  he  admitted  that  a 
nnifonû  could  make  very  little  diflerence  when  engaged  in-  lawful 
acts  of  war,  such  as  a  siège,  &c.'  That  was  one  case  ;  but  there 
was  another  which  he  mentioned  which  should  not  be  lost  sight  of. 
He  stud: — "  It  makes  a  great  differeiice,  however,  v^hether  the 
absence  of  the  uniform  was  used  for  the  purpose  of  concealment  or 
disguise  in  order  to  get  by  stealth  within  the  line»  of  the  invader 
for  the  dest^ction  of  life  or  property,  or  for  pillage,  and  whether 
the  parties  hâve  no  organization  at  ail,  and  are  so  small  that  they 
cannot  act  otherwise  than  by  stealth.  Nor  can  it  be  maintained 
in  good  faith,  or  with  any  respect  for  sound  sensé  and  judgment, 
that  the  iQdividual — an  anned  prowler — (now  frequently  called  a 
bushwhacker)  shall  be  entitled  to  the  protection  of  the  law  of  war, 
simply  because  he  says  that  he  bas  taken  up  his  gun  in  defence  of 
bis  country,  or  because  his  government  or  his  cluef  bas  issued  a 
proclamation  by  which  he  caUs  upon  the  people  to  invest  a  town 
ànd  commit  misdeeds  which  other  civilized  nations  will  consider 
mnrders.  "  Now  what  stronger  language  couidbe  cited  which 
bad  a  more  direct  aiq)lieation  to  this  case  ?  What  did  thèse  unfor- 
tunate  young  men  do?  Did  they  not  dtsguise  themselves  and 
enter  the  town  6y  stealth,  tSat  bwng  the  only  way  they  could 
act.  There  waai  no  authority—  even  a  recognised  Bovereign 
could  not  give  to  Mr.  Young  orders  to  do  that^which  was  a  violation 
of  international  law  or  that  which  was  a  criminal  act.  Therefore 
the  prisoners  could  not  Jbe  protected  because  they  obeyed.  He 
also  cited  another  case  in  which  it  was  laid  down  that  ''  it  ia  not 
p^snmed'their  sovereign  has  ordered  them  tô  commit  at  crime; 
a&d  even  supposing  that  they  had  received  such  an  order,  they 
(M^ght  not  to  hâve  obeyed  it, — their  sovereign  not  having  a  right 
to  eommand  what  waa  tit^trary  to  the  lawa  of  nature."  What 
could  ^e.  clearer  than  tfiîsT  Aitid'yéî  îl  was  pf^ESjSdéd  that  ^0B[r 
Davis  had  a  h^t  to  ordî^r  thèse  acts,  no  matter  what  they  werei 


-ïv*t 


861  .        , 

•  ,  ■         ^ 

"  Slffi"  *^l®°^  ^  "^^"l  ''^"^'^  ^«  accomplished.    That  argument 
aSI^  JS-       P""^"?^)^  *>T°  ««""try,  but  not  before  this  Court. 

Mdett»tion  ofhistenth  proposition,  that  was,  the  charge  against  thff 
pnjonerg.  The  eomplail^  charged  the  prisoners  with  thfcîhne  of 
robbeiy,  m  havmg  at  St-  Albans,  on  the  19th  October,  ia64,'with 
force  and  violence,  tabei|i  from  the  persomof  one  Breck  a  sum  of 
-;nïL-ivr*'^J'f  apeaceful  citizen,  ùnarmed,  and  not  engaged 
mhostilitaès;  butpinrsuing  his  ordinary-busmess  avocations     He 

Ik!!^      ml    *°-''  ^^*,  ti^  ™o°«y  ^  m  a  note,  and  there  waa  • 
robbed.  ^  The  pnsoners'  counsel  had  found  it  necefisanr  to  invoke 
^e  «moient  and  extrême  rule,  that  «rigbt  of  spoil  or  plunder 
extends  m  gênerai  to  ail  thmgs  bejonging  to  the  enemy."    But  in 

th/tT/L*    Çy«»*>«»«  »°d  authorities  ah-eady  given,  established 
^t  the  aot«  of  the  pnaoners  at  St.  Albans  could  not  be,  regarded 
wwlî! Jîf^^^:,  i*  ^««.'^ofcessaiy  to  diacuss  the  question,  tX 
Jatextent  déprédation  and  plunder  might  be  considerçd  justiA 
JMe,  a«  be^een  the  belligerents.    It  was,  ho^ever,  certeii  that  ^ 
fte  prmoiple  mvoked  by  the   prisoners'   counsel  was  at  vari- 
ance    with    the   rules   of   warfare,  now   recognised   aad   acted 
upon  by  ja*»OM,  M  shown  by  the  foUowing  authorities  ;  tb  Vattel, 

PÇ.  yy,  100, 1,  2,  8,  and  4.    Halleck,  pp.  382,  8,  427,  456,  462 
L's.  ^eaton  pp^86,  8  ;  596,  600,  if  626.    Liebe^s  Instrac: 
tr^f^'lhf^'  f^  ^'  Ti  l^'  ï^"  °^  C^uerilla  Paries:?;.     " 
nn  ^    ;  fi^*T  '  ^î^'"'  ^'^  ï^ebruaiy,  1865,  Trial  of  Beïïl, 
W-  »4  and  86     In  conclusion,  Mr.  Carter  said  :— I  would  respect. 

Sji?    ^PT^.  ^.^"^""'^  "^^^^^^^'^  °^'^«*  ^«  directed  to  the 
coMWeration  of  t|e  foUowmg  pomts  which  are  respectfully  sùbmitted 

MconplMive.    Is^Tbat  the  charge  haabeenfÏÏhrproVedagainst 
Je  pn8«»er4.    2nd--That  although  their  leader,  toLg,  clS  to     ■ 
1 1 'ÏS;  »  *l.Confederate  States,  his  acts  were  not^iuSed 
rtj  any  aathonty  thu  Court  can  recognue.    =ârd— Ojlàit  the  com- 
mwMonhe  produceamust  be  disregarded,  the  Court  beingbOundto     ^ 
îï^Ti'^*^^*ï*-  *fa«  Confederate  States  hâve  not  beel  ^cog^ 
J»a  by  «reat  Bntain  i»  an  Independent  Sovereignty .    4th— That 
a»e  inoursion  m«ie  from  our  tç&tory  into  the  State  of  Verinont, 
M  to  be  reMided-not  only  a^  â  crime,  punishable  by  pur  mmncipd 
ï!'  ï"*»  ^««^w^d  an  act  unlavrful  and T,iratical  ly  intetnatioSl  ' 
£'  »™  .!»•««»»<>*. Pwtected  byit,  asaa  actoflawful  warfare. 
Jth— Iliai  the  birounwtances  attending  the  comnâssion  of  the  act 
^rged^ixreipeptive  of  the  above  considerationfl,  tested  by  the  prin. 
wpxe»  et  mtenatioDal  law,  wwiiTnp  no  othof  uhiritwtui  ihau 


.1 


/ 

f 

■      "il 

■T^ 


.     -  -  *"> 


^ffi" 


i«<«.'jÏS**5'*    -^^  ^  beenltated  that  if  the  prisonet»  were  not 
«wwoMed,  tbe  oenMquences  might  be  to  invdve  ua  in  a  war  with 


362 


.L 


i'^t'  I 


t 


ih 


I 


r* 


the  United  Siâtes.  Suoh  an  eveat  is  possible,,  bnt  I  hâve  reaaon 
to  hope  ît  will  not  occur,  The  Xlmted  States  hâve  a  right  to  expect 
a  fulfilment  of  our  treaty  obligationB — the  strict  observance  of  our 
declared  neutrality,  which  proUbits  our  countenancmg  the  actsif 
the  prisonera,  which  are  not  onhr  a  violation  of  our  municipal  raies, 
but  also  of  international  law^  I  deem  it  my  dutj,  however,  as  one 
of  the  représentatives  of  the  Crown,  to  disclaim  dl  intention  to  urge 
that  considération  as  a  grouad  for  extradition.  It  is  very  far  from 
being  Jhe  désire  of  &e  Goï^emment,  to  avert  the  conséquences  of 
a  war,  b^Hîr^ustly  offering  as  a  sacrifice  the  liberty  of  any  man.  God 
forbid  that  tMs  should  ever  be  the  case.  Speaking  as  a  trae  English- 
man  ought  to  speak,  I  saj  that  England,  and  her  loyal  subjects  in 
Canada,  ijould  far  soon»  meet^war,  witn  ail  its  direfiil  conséquen- 
ces, than  that  its  Judges  or  its  Courts  should  become  the  instru-. 
ments  of  injustice  and  oppression.  But  I  do  not  conceal-the  fact  that 
your  Honor's  décision  is  looked  lorward  to  with  some  anxiety — one 
laudable  and  prajseworthy,  and  which  every  nation  and  govemùpent 
should  feel — the  anxiety  ,to  préserve  its  honor  and^wsed  faith  in  the 
exécution  of  its  convôntional  obligatjfons,  with  other>nations.  The 
honor  and  good  faith  of  our  Government  is  therefore  in  a  measure 
involved  in  this  inquiry,  and  they  will  not,  I  feel  <  confident,  suffer 
at  your  Honor's  hands. 

■1 
Bon.  Mr.  Abbott,  Q.  C^  in  reply  : 

\  When  I  f ev^  the  immense  accu- 

mulation of  matter  that  bas  beçn  laid  befbre  the  Court  during 
thèse  three  daya,  which  it  devolves  upon  me.  ,now  to  analyse  and 
discuss  ;  and  the  lengthy  arguments  entered  into  by  the  learoetl 
Counsel  on  the  other  side,  to  which  I  am  now  called  upon  to  reply  ;  | 
the  taak  appe&rs  of  appalKng  magnitude.  Not  so  much  on  account  of^ 
the  applicability  to  this  ctee,  of  either.  the  citations  or  the  argu- 
ments, bjdt  chiefly  because  of  the  enormous  number  of  authors  and 
books  wnich  my  leamed  friends  bave  cast  before  jour  Honor,  as  I 
conçoive Wmost  indiscriminately,  and  with  but  littfe  regard  to  their 
'  .connection  with  the  pointa  of  law  arising  in  this  case.  And  another, 
though  a  mmor  difl5culty  which  meets  me  at  the  odtset,  is,  that  my 
Içaraed  friends  do  not  quite  a|frefi  upon  , the  grounds  upon  which 
they  demand  the  extradition  of  thèse  priàoners.  ^  Some  of  them 
'  think,  ibr  instance,  that  the  reasoning  of  the  Upper  Canada  Judges 
in  the  Burley  caae  was  ri^ht,  and  some  appear  to  thiiJc  it  was 
wrong  ;  though  as  a  matter  of  course  they  agrée  that  the  conclusion 
arrived  at  was  the  right  one. 

Mr.  Bethune. — We  never  said  their  reasoning  waa  yrong. 

Mr.  Xîîoi!?.— -Wëll,  T  do  riot  khow"  whoÊtt^  my  léwmea  frieni 
meapa  by  "  we  ;"  but  as  I  find  thait  the  advocates  ror  the  extradition 


^  *^  868 

leLéT  fS^n  lu       ^  ""^y  ^^  J'"*^^^^  ^°  claasing  my  four 

foenda  opposite  hâve  expended  a  great  deÏÏ  of  eloquencS  gSd 

pos  tioQ  m  which  tbs  country  would  Le  placed,  ahd  upon  thSsT  i'' 
toous  conSeaueûces  which  would  resuit  to  it,  if  youTcidellôJ  to  ^ 

mcursions  inU)  the  United  Kta£7Z  "uft^'n^M 

a  perfect  nght  ft,  make  our  neut^l  territoi^a  base  forTu^to 


;  f 


».    • 


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fit 


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■^\' 


864;  ■,  /    v^"  •     ■':r,^.  :,.  ^     ■.■;•-- 

Srises  agûnstihe  United  States  ;  ah^  thftt  thç  nuûntehanO&^ôf  sudi 
octrinea  would  end  in  involving  ua  in  wap^  or  in"  serions  quarrels  with 
our  neighbojW.  Every  one  of  my  leariied  friands  tas  urgèd  or  as- 
gv^ped,  tha^  you  must  oither  commit  tkesèi  men  fmr  extmditiofr  under 
the  A8hbi;àkni  Treaty,  or  approve  of  the  attàck  on  St.  Albans  ; 
tha^  yovL  most  hold  that  thè  attack  was  perfectly  justifiable  i^nd 
legaï,  a^  not"  even  an  iufringement  of  our  own  laws,  even  though  it 
had  originated  in  «Canada  ;  and  that  yqjtf  miïst  interpose  your  sxf 
thority  to  protect  the  priaoners  in  their  ûnlawful  conduet  ;  or  tliat 
yoi^must  extràdite  them.  Bui  ail  thèse  mei^Iy  constituted  some  of 
tfae  numerous  fallacies  which  the  Counsel  «^opposite  hâve  placed 
before  us,  and  they  are  net  in  i^he  least  degree  more  transparent  thaa 
quuoiy  of  their  fellows.  We  fnsi^t  in  the  interest  of  ôùr  clients  that 
^ou  Are  bound'to  give  effect  to  the  Ashburton  Treaty — but  only  in 
accordanoe  mthks  true  intent  aad  meaning.  We  do  not  claim  or  argue 
that  this  att^||pBtt,St.  Albans  was  justified  by  the  laws  of  Canada.  We 
do  not  ^^j|^^|^n<»*  to  hold,  or  assert  that  you  ought  to  hold,  that  the 

Îrisone^BJHBRht  to  make  Canada  a  base  of  opérations  against  the 
TnitedllHH^Pthat  you  should  protect  them  in  organizing  expédi- 
tions froml^^pa  into  the  United  States  ;  nor  do  we  argue  that  théy 
should  be  dis^arged  on  the  ground  that  hostile  incursions  from 
Canada  are  justffîable  by  our  laws.  I  claim  that  by  discharging 
tiie  prisoners,  you  would  hold  nothing  of  the  kind.  A  décision  that  the 
prisoners  are  not  liable  to  extradition,  will  not  in  volve  anyjudgment 
upon  the  character,  as  regards  the  Canadian  Government,  of  the 
act  they  committed  ;  nor  wilj  it  décide  that  the  prisoners  may  re- 
tum  to  the  frontieï^line,  and  engage  in  a  similar  enterprise,  retum- 
ing  once  more  to  Canada.  Your  décision  will  not  touch  any  o£ 
thèse  matters.  The  argument»iof  the  Counsel  who  opened  the  case 
for  the  défense  wœL  not  that  you  should  approve  of  what  was  done 
at  St.  Albans,  but  Ihat  it  was  not  within  your  province  on  this 
ocfiasiQi^  JfO  t>ronounoe  aay  opimon  upon  it;  that  the  prisoners' 
Govertiiiiieût  alone  had  a  right  to  deal  with  that  matter.  We  say 
now,  as  befiffc;,  that  w;e  neither  ask  your  Honor  to  approve  or  disap- 
prove  of  the  prisoners'  coiiduct  ;  we  are  perfectly  ready  and  willing  to 
submit  that  to  the  appropriate  tribunal  when  tiie  proper  time  arrives. 
The  décision  we  »eek  will  not  require  you  to  déclare  from  the 
bench  of  justice,  that  incursions  from  this  coontry  into  the  United 
States  are  jostd^blé  or  otherwise,  or  otherwise  to  give  the  sanction 
of  your  auânarity  <»  any^  act  of  the  kind,  or  your  protection  to  the 
prpetraltora  of  it.  What  the  Counsel  for  tho  prisoners  contend  for 
is  not  approbation  of  the  prisoners'  conduet,  but  a  déclaration  that 
iheif  case^  doea  Mi  fdA  witMa  fc»  Adiburtm  TreaQ?^-    Wfr  don 


"ask  thi^  the  TreflÉy  be  disregarded  ;  but  that  it  be  only  made  to 
af^ly  to  oiretinwtances  consistent  with  its  intention.    This  is  ^11 1 


/ 


■M:} 


866 

propoée  to  say  on  what  oonetitutea  a  lareo  pronortion  of  ti,-  ^aa 
•of  some  of  my  leamed  friends  opposite  ^'^P^'*'^  of  the  ad^resset 
There^iaanother  part  of  those  addreêaes  whioh  I  vroime  iaM^ 
mm  stU  moro  summrily,  and  that  is  tho  ext^^nlt^^?!^^ 
^tuperation  .with  whieh  we  hâve  been  favor«d:  £,  ÏÏSMT  1 
oontest  I  am  nqt  dispoeed  to  enea«e.  If  the  arm.m«ÎÎW.ir 
leamed  genUeouiarwhom  theae^Srks  mo^  SSvl^ï' 
were  aa  strong  ae  Wb  epithets,  I  «hould  be^^^to'd^^^ 

"tîlfut^i^ertSt'  ^'^  '''-'  ^  ^-  o^  ^  aJS;;^ 

It  aeéma  to  me  that  ia  order  to  ««¥«  «♦  «  «««„„-  v  .. 
-Of  the  principles  of  law  w^ch  t^l  t^el^Z  Se'îb 
aecessary  to  disoover  what  the  facte  are  :  3  to  th2^' IS 
first  apply  xoyeelf.  In  presenting  thèse  fX  to  vouTho^ 
I  Bhall  endeavor  to  sta^  them  eLîtIy  and  Mly  n^  ieWHnJ 
à  portaon  of  a  document  or  a  déposition,  Sd^ÏÏnfu^f 
«  oonveying  aU  tfae  truth  ;,  but  shV^ing  thrlSlT^f  eveïî 
eircumstancô  put  in  évidence  ;  the  leeaJ  effect  of  1*»^^  •  A     ®^ 

of  the  testimony,  verbal  and  written,  and  trv  to  nlad^WrlJ*!^  Jî 
«ecutively  before' you  what  it  estabkhes.    ffll^JÏf  Jlî? '^^'^ 
opposite  deny  that  you  hâve  any  rigtt  to  enqSTfoufLtT 

that  It  w  sufficient  if  a  prima  fade  case  be  establSer  h^ 
which  they  appear  to  mean  that  you  shaU  look  onfv  a/ Z 
feetethev  choose  to  place  before  yo^u:  and  V^  yoA^  t't 
«nquire  how  far  the  acts  with  which  the  DrisoneL  ar«  !ï.o    ^f 

flie  Ashburton  Treaiy.    Mr.  Johnson  and  Mr.  De^C  L^ 

KrHÎS,rh  '  "^^  ^TT^'''  ^  ^  consistent  LitXUt 
the  first  they  hâve  insisted  that  your  Honor  was  boimd  tnT™?î 

fcr  extradition   merely  upon  a^deposiïï'b^Sg tS  befo^Z 
Bhewmg  that  the  pnsonera  had  entered  the  banV  «f  R+   i  ii7    ' 
.J^  taken  by  vioJce  |300  from  iS^Br^k.  t  ^ï^^ 

Sb^T" hi'nlfto  \'^  'tf?  ''  '^'  whiohTZk  apS 
caoïe  to  this  pomt,  to  show  what  I  conceive  to  be  reallv  vîT» 

Honor'B  duty  m  this  behalf.    Thèse  authorities  ^  ^ Vme 
Jh^ch,  strange  to  say,  my  leanwd  friends  hâve  cited^  ZxS^ 

dency.    The  Chesapeake  and  Gerity  case  sare  &ow  rf^whî«h 

ftesemen;  b,t  that  you^BhouïA^^t,  if  po«Hbâ,  ^m^- 


Mborton  Tre.^^  »„  «aUy  oomnàed  .t  St  ÂWb/thïJ 


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men,  as  charged  in  the  information.  And  the  first  élément  jy|  this 
enquirj  ia,  whether  any  rQj)bery  at  ail  was Vommitted.  If  it  be 
not  shown  positively  that  there  was  a  robbery.  committed — if  we 
hâve  not  «a  corpus  delicti^  the  case  is  akan  end.  Your  Honor 
would  not  commit  a  man  for  robbeir,  unless  you  were  satisfied  a 
robbery  had  been  perpetrated.  xou  wonld  requirô  proof  that 
some  oSènce  had  been  committed,  before  sending  the  aceused  to  a 
trial. .  I  deny  that  a  robbery  was  committed  in  St.  Albana,  of  the 
description  mentioned  in  this  information;  or  that  any  offence 
whatever  was  committed  there,  for  which  the  prisoners  are  amenable 
to  any  municipal  tribunal  whatever.  There  is  no  disputing  the  fact 
that  ^e  prisoners  were  at  St.  Albans  on  the  19th  October  last, 
that  they  pillaged  the  tov^^t  it  on  fire  in  three  places,  and 
that  in  the  skirmish  a  man  war^ed.  But  I  say,  that  pillage  waa 
not  robbery,  that  buming  was  not  arson,  that  kilung  was  not  mur- 
der.  Surely  thèse  questions  must  be  decided  before  ordering  the 
extradition  of  the  prisoners  ;  an  of  der  whereby,  if  our  prétendons  are 
correct,  an  immeasurable  wrong  would  be  donc  to  them  Avhich  no 
trial  in  the  Fedend  States  could  repair,  as  their  only  dëfence  would 
be  rejected  as  insufficient  in  law  by  any  court  in  thosc  States.  This 
is  the  view  which  I  submit  is  sustained  by  the  Chesapeake  case. 
At  page  46  of  the  report,  Judge  Ritchie  says  :  "  The  dutyof  deter- 
"  mimng  on  the  aufficiency  of  the  évidence  ia  cast  on  the  Magit- 
"  trate  or  other  officer.  He  ia  the  person  to  be  aatiafied  that  the 
"  évidence  jtiatifiea  the  aj^ehenaion  and  commUtal  for  irial  ofthê 
"  penona  accuaed.  The  amount  and  value  of  that  évidence  ia  for 
"  hia  determinaUon.  •  ^  *  Itia  a  jvtâieial  diiere- 
"  tùm  toith  teMeh  he  ia  veated."  It  is  to  be  observed  that  Judge 
lUtcMe  was  dispoemg  of  .an  application  for  the  discharge  of  the 
prisoner  Collins,  under  a  writ  of  habeaa  corpiia,  one  ground  of 
which  application  was,  that  the  act  of  seizing  the  Chesapeake  was 
a  belligerent  act,  in  the  interest  of  the  Oonfederate  Statos.  And 
he  is  arguing  that  he  cannot  be  regarded  as  sittmg  as  a  "  Court  of 
Beview  or  Error,"  on  the  décision  of  the  ma^trate.  Yet,  he  says, 
"  if  it  was  manifestiyjipparent  that  the  évidence  showed  that  no 
"  offiençe  had  been  committed,  or  that  the  party  was  unquestionably 
"  innocent,  and  that,  therefore,  there  was  really  no  matter  of  faot 
"or  law  to  be  tried  ;  no  matter  in  which  a  magïstrate  could  exeiv 
'^If  cise  a  discrétion  or  judgment,  then  the  case  would  be  very  diffe- 
"  rent."  And  what  woul^  <^adge  Ritchie  hâve  regarded  as  being 
saffioient,  to  màke  it  "  aj^Mirent  that  no  offence  had  been  com- 
mitted "  ;  that  the  parijy;  "was  unquestionably  innocent  V*  Such  as 
would  leave  the  mafflgtrotejpo,  judioial  discrétion  to  exercise  ;  and 
would  cioinpwl  hiiBi  wppHiWiii  (>[>;j>iiiij  to  ninflhftigo  tlm  jH'ioiiiioi'n  T 
Why  simply,  Ihatlthe  prisoner  Collins  should  hâve  proved,  either 


I  '''•|.^iisi^l^Mi?l(£*,. 


1  % . 


867 


«  or  r^^^  ^deliberato  «pon:  nothing  for  a  Superic 

prove  tùat  Oollins  and  his  party  were  "acting  under  a  rpmil»* 
oonumasion,"  or"  were  beUigerents  themselvfs  "T"  thaffh" 
e^difaon  proceeded  from  thi  Confederate  Stetes.»  If  al  tf 
î  u  *^''«\«??^t'o°s  had  been  established,  it  is  cleaTth^hl 
would  hâve  held  that  the  magistrate  had  no  rigL  to  coLît    l,«? 

to  brUd  \y  phesapeake  caae,  none  of  thèse  conditiois  were 
to  be  tound ,  the  pnaoner  waa  a  natural  born  British  subiect  •  and 

nawai  ?orn  JJntish  subject,  who  asserted  himself  to  be  a  com 
ZtZ  ?^  ^  ^^^"^«de'rate  Navy  ;  but  who  failed  to  prove  that 
he  held  that  rank,  and  stiU  more  that  he  had  either  Set  or 

mg  that  with  a  caae  like  that,  Judge  Ritchie  felt  that  he  coidK 
!S,^^*  ^«„?»aff«trate  had  no  factebefore  him  to  iustifv  the  com 
.nnttel  of  Colhns  ;  for  the  seizure  of  the  vessel  was  CeLble  Td 
no  légal  pwof  whatever  waa  offered  to  justify  it.     CC  wouM 
fte  Judge  hâve  acted  how  would  he  hâve  held  that  ti^s  magirtra to 
having  ongmal  lunadiction  ought  to  hâve  acted    if  «il  S  ^ 
^ese  éléments  iad  been  comLed?    l7dT^A^;ef  coLit":  of 
Am J  were  proved  to  exiBt,  any  one  of  whJch  h7held  wou ftav J 
SSS  token  the  ca«  out  of  the  jurisdiction  of  the  mSmte  ? 
Galtf  ^f^\}^''^^  thatCollinswas  a  commissioned  offic^^of  the 
Confederate  Statea,  and  that  he  and  his  men  wer?  subS  of  S« 

sLt''™î^^£îrV*^."?"'  ^."^^*«^  «^^^-^  of'theTorfedIrS: 

Ae  temtog  of  the  oth efbeUige'rent  itself,  twVtv'ilesVrl  iS 

dSîL  lu  *  u  ^^*^  '*°"®  '^"g  ^y  committing  Collins  for  extea! 
ftj^l^^r^  P^*^°^«^  ^  ''^^^^^  a  judickJdisc^tion^ 
m  hoWmg  the  &ots  sufficient  to  warrant  that  coLûtnrenSrin 

Judge,  occasion  to  ducuss  suoh  a  question? 


VM 


t,u 


m 


.         "^1 


i 


868 


The  Chesapeake  ease,  therefbre,  oleail7esimotbemad«  available 
for  the  prosecution  to  shew  that  your  Honor,'  haviag  prknary  juria- 
oÛction  in  this  matter,  ought  not  fuUy  to  mve8(àga;te  the  fiusto  of  the 
case,  and  décide,  in  the  exercise  of  your  judioial  discrétion,  whether 
or  no  any  suoh  offence  as  that  charged  has  really  been  oommitted. 
In  the  Gerity  case  the  doctrine  held  by  the  Judges  seems  to  hâve 
been  the  same.  Not^mthstanding  what  Mr.  Johnson  has  said,  in 
regard  to  it,  the  language  of  the  Chief  Justàee  of  England,  in  dis- 
cussing  the  question  whether  or  no  tiiere  was  sufficient  évidence  to 
shew  that  the  seiznre  of  the  Gerity  was  made  on  behalf  of  a  bel- 
Ugerent,  entirely  sustaîns  n^  pretensi<«M.  '     , 

"  I  agrée  in  everything  Mr.  James  has  swd,"  (says  Ch.  J. 
Cookbum)  "  as  to  acts  with  the  intention  of  acthig  on  behalf  of 
«  one  of  the  belligerent  parties."  What  did  Mr.  James  say? 
"•Pû-acy  dépends  on  oircumstahoes  ;  and  acts  wlûch  in  a  time  of 
*'  peace  would  be  évidence  of  the  crime,  are  not  so  whe»  done  by  <me 
«  beUigerent  agairut  the  other*^  Again  :  "  Furiher  even^»a<« 
*♦  euijecti  were,  «o  far  a«  the  enemy  waa  concemedj  and  therefore 
"  so  far  as  to  exclude  them  from  the  class  of  pirates,  entitiedto 
"  seize  without  authority  from  their  govemment,  prpperty  belong- 
"  ing  to  thè  enemy."  Thè  Chî^,  Justice  adds  that  he  «^annot 
say  that  the  ma^strate  was  not'  justified  in  committinM||ÉK>ri- 
soners  for  trial  :'.'  but  why  ?  Because  the  sole  evidenesHmeir 
belligerept  character  oonsisted  in  their  statâng  when^tb^^ized 
the  vessel — that  they  did  so  on  behalf  of  the  ConfederadiiBS.  There 
was  no  différence  of  opinion  among  the  Judges  of  °Eilgland  <m  the 
•pomt  under  consideratioA„though  this  was  not  thç  ground  upon 
which  they  were  dischargtfd.  The  dilemmit  trader  wWch  that  dis- 
charge  became  necessary  is  well  put  by  Mr.  Justice  Blackbum. 
He  says  *'  the  case  is  eiwer  one  of  piracy  by  ihe  làw  of  nations — 
in  which  case  the  men  cannot  be  j^ven  up  because  tikey  can  be 
tried  hère  ;  or  it  is  a  case  of  an  aot  of  warfare,  in  wUek  cote  Ihaj 
eannot  be  tried  at  ail. 

It  is  unneœssary  to  reiteraite  hère  ^e  sttne  illustrât»)!»  of  the 
effect  of  the  Chief  Justàce's  viewi,  in  which  on  this  p<mit  h»  col- 
leaguea  agreed, — which  I  bave  applied  to  t^ose  of  Judge  Bitchie. 
The  inference  is  preoisely  the  same  in  both  ca8e»--and  it  is  tiie 
reversé  of  that  for  which  the  prosecution  oontends^  In  thai  case 
there  was  but  a  êointilla  of  eyidenoe  of  the  belligerent  ^«raeter  or 
intent  of  the  prisoners  :  and  that  being  of  t^eir  own  ineation,  oould 
only  be  admitted  at  ail  on  the  eround  that  it  formed  iMuti  of  the  ru 
geatce.  The  only  évidence  of  their  aoiing  fbr  the  C<Mu'ederaike  Qfriri 
«mment  was  t^eir  own  déclaration  to  wkt  efieot  whea  th^  took 
possession  of  ^e  T<iHelr7«<> tike  finish  Jttâges^teskwiwx 
siderable  hflBitaiion  in  deahng  with  their  oase.    They  4o  not  say-^ 


-  ^ 


369 

r*?i*  ^«Vg  satisfied  ihat  if  Sere  hJîî^  ''^  **•«  ^«*^  case, 
than  tbe  déclaration  of  Z  m«n  ÎT      .  ^^^  '^^  ™ow  ewWe 

aiem^on  iiatgromid  aloneTSt  L  a  iS^ J'.?^  ^^«  dischargeS 

the  Judges  take  into  coi2ide«ïïlT    ^^^  ™  England,  thatall 

airordedbythedeclar.ffofC^^^^ 

ficient  to  warrant  their  h»teXrenc«  lvi:^?°^^*^7^<>Wîtin8af 

mgwtrate  who  tried  the^^  Tthrl^"  J'T^ction  of  ihe 
thejr  acted  under  an  officer^^he  ConLî^"""  ^  P«>^«d  that 
instructions  from  GommJoreB^^^^^'T  "*7/'  "«d«  ^tten  ^ 
any  hésitation  on  the  p«S  of  thXriitf  ?'> ''''?^^*^«^  ^^^^ 
,  matter?   Their own rfKthaS^l/r.ir -i?  ^^^^ 
n!^.^  ^î^'^^rit^rs  on  inteniationÏÏ;~the^^^^^^ 
of  the  Judge  at  Bermuda  in  the  rZ.^*^      '^'^  ?^  J°<*««  R'tcWe  : 

ment  of  England,  as^viSeï^ed  b?r|  J^'p^^'i*^^^  ^'''^' 
hâve  approvedof.—aU  show  fW+Z  ^'^^  RuaseU's  despatoh 

Wyrank  ifnotWlïe'nSt^^îf,^^^^ 
belhgerent,  is  sufficient  in  iteetf  t^  ^^î^  f  S?  .*«g^«««>r  «  a 
enemjm  an  enemy's  territorl  ArÎJf^  ^^  Iiostilities  against  an 
tention  of  my  leJed^nZv^i^TTT^  '^'  ««««  ^îhe  aï 
point,  but  to-'another  rMm^^o^LT  ^^  J^^  ''^^  ^  tWs 
efièct  of  the  neutnd  ch^ter^f  theS«u^i''  "^  t^'  «»PP««ed 

^mg  proceeded  from  nuetral  teïSto^aL^^ 
to  disoufls  this  point  more  at  lenST^^bSl  *  7^  ^®  "^^  <ï°<y 
I  am  now  contending  for  has  nofl^in      W^""  P^**'®'    Ti»«  rule 
«faar  récent  caaes  on  Sfs  clte„t     S^^       miobsenred  in 
lately  at  Sherbrooke  befor JuC sL InT  ^u^""  *  <'««« 
Amencan  Judge  at  Détroit  in  Xh  Kl  »?  *"''**'*''  '**^'''«  »° 
acted  on.    In  the  former  ob^jX.  il  ^a^.^""  recogniaed  and 
We  felt  justdfied  in  orderi^^ie  t^f  ïf  -f  ^^  ^''^  h«  ^o«W 
defence.  to  satisf,  hin^SlSt^^^ZtZu^  ^.M^«^^ 
«  the  pnsoner  had  not  aonUed  f«r  aT  î^  -,  ^  ^"'™  ^«  Treaty, 
"».the  latter,  the  V^S^^J^âh^^'^  "^  î'^^ '^'    ^^ 
.Ï?.T^^"  tis  belilf-.the  eWdeWK.*^'  ^"  •'^«P*^»"  of 
iteslf  being  complet».    In  L  bS  ^    i  P«î«f*»«o»  <aken  by 

toprocure  évidence  tobepKSrT^'ft^^^^'^g""^^       ' 
«f  the  oflfenoe  oommitted  •  3  S.Î!  f^j^  '^"'^«*'  »«  *<>  *he  nature 
.  ^ed  by  tte  JuS^^tho^  S  rc^f  ^««/««i^ed,  and  Z 


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If 


■     870. 

I  hâve  now  periiape  devoted  more  time  than  was  absolutely  neces- 
sary  to  the  discuasion  of  this  branch  of  the  case,  and  I  tum,  as  I 
stated  I  vould  do,  to  the  facta— to  the  actual  state  of  the  évidence 
as  regards  the  position  of  thesé  men,  and  their  authority  for  what 
they  did.  Upon- thèse  points  we  hâve  had  a  great  deal  of  discus- 
sion ;  and  it  is  proper  that  they  should  be  fiilljr  appreciated— for 
till  we  arrive  ât  some  décision  upon  thèse,  voluminous  citations  are 
of  little  use.  In  reality  yfaa  the  act  now  complained  of  an  ordinary 
felonious  robbery,  Or  a  hostile  or  a  political  act,  arising  out  of  the 
unfortunate  state  of  things  now  éxistiiig  between  our  neighbors  ? 
what  is  the  etatuê  of  the  prisoners,  and  who  are  they  ?— are  they 
British  subjects,  as  my  leamed  friends  opposite  prétend  ?— hâve 
they  acqùired  a  domicile  in  this  country  that  ^eprives  them  of  their 
national  character  ?— that  divests  them  of  their  alle^ance  to  their 
^)arent  ^tate  ? — Or  are  they  citize^s  of  the  Confederate  States  ?  Is 
Mr.  Young  a  subject  and  a  commissioned  oflScer  of  that  power  ? 
are'his  comrades  the  soldiers  as  well  as  the  subjects  of  that  power  ? 
Now  I  contend  that  we  bave  proved  beyond  dispute  that  it  is  the 
latter  state  of  things  which  the  évidence  demonstrates  to  bave 

existed.  /  ,,.  ,  •      .1  •       •  ^  • 

The  first  document  I  shall  refer  to  as  estabhshmg  this  pomt  is 

his  commission,  which  reads  thus  (p.  80)  : — 

CONFBUBRATB   StATBS  DP  AmERICA, 

Wab  Dbpa&tmbnt, 
Biçhmond,  June  16th,  1864 

SiB^ You  are  hereby  informed  that  the  Président  bas  appointed 

you  First  Lieutenant,  under  the  Act  121,  approved  February  17th, 
1864,  in  the  Provioional  Army  m  the  service  of  the  Confederate 
States,  to  rank  as  such  from  the  sixteenth  day  of  June,  1864. 
Should  the  Senate  at  their  next  session  advise  aiid  consent  thereto, 
you  will  be  commissioned  accordingly. 

Immediately  on  recèipt  hereof,  please  to  iîommunicate  to  this 
Department,  through  the  Adjutant  aiid  Inspèçtor  General's  Office, 
your  aooeptanoe  or  non-acceptance  of  said  appointment,  and,  with 
your  letter  of  acceptance,  retum  to  the  Adjutant  and  Inspecter 
General  the  oath  herewitii  enclosed,  properly  filled  up,  subscribed, 
and^tMted,  reporting  at  the  same  time  your  âge,  résidence,  when 
appmnted,  and  the  State  in  which  you  were  bom. 

Should  you  accept,  you  will  report  for  duiy  to 

(Signéd)  Jab.  a.  Sbddon,  Secretary  of  War. 

L"  3     n  .  Bennett  H.  Young,  &c.,  &c.,  P.A.C.S. 

Thifl  is  a  document  which  undonbtedly,  jy  its  terdà,  conféra  on 


I 


Bemiett  H.  Yoûng  the  rank  orFiiSt  LiétttettMït  in  the  prbvînônir 
ate  States  of  America.    Well,  if  tliis  is  not  a 


^  *s 


r.A'Sj; 


871       , 

the  Confederate  States  •  it  «w^T       ™?°**«  ^0°»  «le  Senate  nf 
the  benefit  of  aU  theàe  negaSb^t tt  l  S  "f.  ^î^'^  ««^ds 

Jf  Ueutenan^rt  S^^ .S?;  ^  Sri?'  ^^^^  *^  Xn 
rfMr.  Young  is  not  entitled,^der  Sni  ™i^'^*^  «PP^ite 

^^:i£r-^^>^J'"^^-^««^erhei3ornot? 


..«s-^ï 


What  would  a  Judge  feel  hn„r.T  *    x  „  ^.^  ''^  «istructed  to  sav  v 

Gentlemen,  the  only  evidenp«  of  r^  i  *^"^ '^dresa  the  jury  • 
Government,  or  eyïnofTCtf:eSÎT''^r'  °^^  ««S 
recognize,  is  the  decIaratioHfthf  pl??*'''^^^^  /»  «an 
thèse  ÏÏnited  States.  UnS  tha  pf  f  î"**^".  Government  of 
:  ;\8(HîaUed  Confederate  States  are  eiS  7'  ^''^''  ^^^  the 
*^  «dépendent  State,  you  c3t  no  J«ïi-^  to  récognition  as  an 

.  say  whether  another  nation  TseS  «?'     'l^'^^^'  ^^'^  J^nes,  to 
the  nghts  of  a  separate  stete      Th^  /^*  ''^*'^'  ^«  entitled  to 

^;  the  position  and  righte  of  a  senaMte^Sl^  ^  ^  ®°*»tïed  to 
disregard  this  commission     Ym,  iS^??^  '  ^^^^  °^'«t  entirely 
n»e,  and  I  teU  ^ou  that  tî;  law^Stf  *"  ^H  ^'  ^^^  ^ol 
commission  whïch  Mr.  DavS^S  i«îi  ?  ""'''  "^^^  ^d  forûial 
1  paper  in  the  eje  of  the  h^'  Ta^!f£  ï  «^  Pi«««  of  blank 
a  jaryjvas  in  erfect  thos  ch^ged  bîjnl^*!"'*"'!  ^  ^<>^  tbat 
m  the  Savannah  case  nnfîflVl^-t  ^  •  •  S®  ^®^n  of  New  Ifort 
that  the  c^eo7j£"j^£^''^^^^<^^^;  and  î  beKevé 
View     And  it%  preclX  b^S^  rb«r'1/«>°^  ^  F^nt  of 
which  every  Jud^  i„  th{  FeZl  SteJiT"  ^u^?^  ^  ^e  that 
my  voice  with  sach  nersistAnf  f«       .    ®"  "^'^t  bold,  that  I  raise 

jreten8ion,thatyoiSStoSïr  "^^^^  *^«  ^'^^^^^ 
or  to  exercise  yoor  judicS  d^Sf  ^  ®^î^«  *^  document. 

^MnJSnnof  UwfuUy  even  lodtat  îî     T  «"«f/f  it,  to  a  tribunal 


•t 


t 


872 

pTdse  of  huiaamty  ;  and  to  degMe  «le  poâtion  of  a  Britûih  maffs. 
Cte.  exerciaing  freely,  independenay,  ma  mteUigenayJtfS  learn- 
STid  his  judlmentf  to  tiiat  of  a  iSrelmg  scnbe,  reoording,  wxth 
KlSn,  L^ases  of  a  foreiga  cabmet  I  sav,  your  fionor, 
ffitilyoûwhonowcan, and must, décide tiusqueetaon.  Itwypu 
X  m^t  say  wheiher  or  no,  according  to  yo^^conacienfaoua  behef 
Ma  JtSge,  upon  the  évidence  before  you  and  the  la^j  ti»w  instru- 
meît  eSher  by  itself,  or  followed  by  the  other  documente  of  record, 
ZmS.  ^oung  to  the  rank  of  a  Lieutenant  in  the  Confederate 
JZj  A^à  you  must  décide,  because  timt  rank  is  an  essentaal 
ïï'of  the  stete  of  thingB  which,  the  pnBonere  faun,  taies  from 
fc  hands  aU  st«n  of  goilt  ;  and  because;  if  ihat  «tate  of^g^ 
reaUy  did  exist,  you  bave  no  right  to  cause  thèse  men  to  be  hajded 
Tv^  toiheir  iltW  eneiiies  for  exécution.  I  say  for  exécution  ; 
fOT  th^k  commitoent  nûght  weU,  be  accomnanied  bv  Ae  same 
SeZ  reconnnendation  tothe  mercy  of  &e  last  and  Whest  Tn- 
bSTaffoIlows  the  last  and  mostawful  sentence  of  offended  human 

^Se  contente  of  ttùs  instrument  render  it  eaay  to  discover 
ita  effect.    "  The  Président  ha»  apwnnted  y<m  Firet  laeutenant, 
&c    to  rank  as  such  from  the  16ih  fune,  1864  "     So  M  jo  com- 
menta Sed.   But  the  leamed  Counsel  say  that  it  is  subjec  to 
Confirmation  by  the  Sonate.     True,  so  are  aU  acting  appomt- 
mente  subject  to  confirmation  by  the  sovereign  power.    In  our 
rr  aimy   and  in' every  army,  and  in  every  navv,  acting  ap- 
^niSte  are  made  B^bjectto  confirmation  byéesover^^; 
Xt  the^  are  not  subject  to  the  miputation  of  nuÇty,  eithei»  by 
a  neuKil  or  by  a  belligerent,  pending  that  confirmation,    No 
ône  Sd   ventiire  to  ^'assert .  that  a   ««"tleman    hoWing    an 
actin  Jaw^tanent  in  the  British  army  or  navy  could  be  tireated  as 
^ber  SXnd,  or  aa  a  pirate  at  sea,  because  his  acting  appomt- 
""^^  7  confirmation  by  Her  Majesty.    Besides    in  tiie 
,aije,themtentionisphiin.    lient.  Young  is  not  told  that 
he>âU»?recommended  for  appointanent  by  the  Senate;  but  that 
Ae  pSirnt  has  appointed  *him.    He  is  not  told  tha   Le  jnU 
lïl^  from  the  confimSn  hj  ihe  Senate,  but  that  he  yiû\  rank  as 
lient,  from  the  16th  June,  1864.  .       ,^ 

But  tiie  leamed  Counsel  «^  that  there  are  conditions  précèdent 
to  tiiis  appomtanent,  and  that  there  is  no  proof  tiiat  those  conditions 
werTfulC.-  %  leamed  friends  are  mistiiken  There  aijno 
Stions  preceSat  at  aH,  and  there  are  no  conditions  whichaffect 
Sêrank  of  Mr.  Toung,  except  the  acceptence.  He  is  directed  to 
tSe^nath,  to  reporthis  âge,  his  résidence  when  app(anted,  and 
& tot^^rficEVeVas^mT  If^  f^^^  '^•STr 
wjwtod  it  incorrectly,  would  he  be  for  that  reason  h^le  to  be 


-> 


t"-: 


\  -  878 

Nfh^gW  he  had  /otlaken  thS.^^or  te.^,'*/?*'^^^  ^ 
CM^he  had  taken  it  conld  tW  L«„V-  ^®  **^®^  *«  prore 

propositions bf  my  leamed  friends  in  Cfora  t^S  *°  P"*  .*^® 
upon  them  superfluous.  '  ^  '®'^^®'"  'easoning 

has  recognised  the  C<m£eder^t^^8t^teB^'Q'^^^^'^^^}^'S^ 
^  are  not  their  own  officers.         «^  »«  ^e  ««*  concemed,  who  are 

referred  to.    Pa^er  N,  4.  80^  «  ÎSis  :       "^  ^'^^"^^ 

CONFBDBRATB  StaTBS  DP  AmERIOA   ) 

,         War  Dq>artment,  '  ( 

^  «»chm<Mid,Va.,Junel6th,1864.) 

^J^'       ^'  ^^'»5'M  kereby  authoriÉed  to  oreanise  for  8n««*l 
«ervice,  a  company  not  to  eiceed  twonfar  in  ..-li-Tx!-  .Pi^  !P^^ 

Statef.  *™  •*  *®  *^«  "^^«d  the  Oonfedemte 


■-*«■ 


■^^  'l)^ 


874 

They  wiU  be  entitled  to  their  pay,  rations,  clothing,  and  trans- 
portation,  but  no  otber  compensation  for  any  service  irhich  they 

may  be  called  npon  to  render.  -',-.,.   tw       . 

The  organisation  will  be  under  the  oontrol  of  this  Department, 
and  liable  to  be  disbanded  at  ita  pleasure,  and  the  members  retumed 
to  their  respective  companies. 

JAS.  A.  SEDDON,  SecretaryofWar. 

Paper  R  (p.  216)  says  :  „  * 

^  CONEBDBEATB  SXATBS  DP  AMBRICA, 

Wat  Department. 
Bichmond,  Va.,  June  16th,  1864. 

To  LiBUT.  Bbnnbtt  h.  Youno  : 

Lient.,— You  bave  been  appointed  teçjporarily  Ist  Lient,  in  the 
Provisional  Army  for  spécial  servibe.  „  .  .  ,  V»     .  . 

You  will  proceed  without  delay  to  the  Bntish  Provmces,  &c,, 
ko  ' 

JAMES  A.  SEDDON, 
Sec.  of  War. 

Paper  0  (p.  206)  is  as  foUows  : 

Confbdbratb  States  dp  Ambrica, 
War  Department. 
Richmond,  Va.,  June  16th,  1864. 

To  LiBDT.  Bbnnbtt  H,  Young  :  , 

Lient.,— You  bave  been  appointed  temporarily  îîrst  Lient,  in  the 
Provisional  Army  for  spécial  service.  You  will  proceed  wiUiout  delay 
by  the  route  aheady  mdicated  to  you,  and  report  to  C.  C.  Clay, 
jun.,  for  orders.  You  will  collecttogethersuchConfederate  sol<iier8 
who  bave  escaped  from  the  enemy,  not  exceeding  twenty  mnumber, 
iihat  you  may  deem  suitable  for  that  purpôs^j  and  exécute  sucb 
enterprises  as  maybe  indicatedto  you.  You  will  taàe  careto 
orgamïe  within  the  territory  of  the  enemy,  to  violate  none  of  the 
neutrality  laws,  and  obey  implicitly  bis  instructions.  Yott  and 
your  men  will  reçoive  tararnsportation  and  customary  rations,  and 
clothing  or  communication  therefor.  _  "  , 

^  JAMES  A.  SEDDON, 

Sec.  of  War. 

I  submit  as  à  perfectly  unassailable  and  incontrovertible  propo- 
rtion, that  eaoh  one  of  thèse  documents  proves  that  the  Government 
of  the  Confederate  States  of  America,  by  the  head  of  its  War 
Dcpttrtmenty  lUff  rftWgT'ff^  ""^  «oknoidedged— and  tfjye  my 
judge  by  th«  active  interposition  of  tbe  Président  of  the  Oonfe*^ 


»" 


^  i      tf  vt'    *\.    <ft« 'V^.aitiM, 


876 
werebroujftfromlUchinonabvMrT^f  tbeao  documents  whioh 

1  do  not  of  course  nut  ihÎH  n»^  ^r    ^  posiuon. 
,  upon  the  ground  that  £  STdorl^Sî  T^'"*  ^«  »°y  respect 
'-Bition  bj  your  Honor,  M^  iSn    /^*®^*~  entitled  to  rtVoft- 
Mr.  Carte?  thia  moSg  ass^^fe^^ *.^^  ^«^«'«^  State,  L 

Government  of  Encla-S  !in«-  ^'^T^^  ^'-  ^oung's  rank.    The 
gichmond  as  bdeSt  b^  S  dZ''^'  ^'  Govermnent  a? 
States  as  bclUgerente  ;  Sd  ttie  vL  rth^HH^^^^  ?^  Confederate 
shew  that  the  récognition  ofVZZ^J*"^'  ''*'^  ^^  ^-  ^»^*^^ 
mvolvesthe  recogitionof  eveinvLwjîI"^  ""^  *"  *  belligerent, 
to  aatateof  war.  Now  tJie  iZJri,i^  ^'^''^^«««arilyincidente^^ 
ing  officers  m  its  oymlZl^^ce^^l^'^'^T^^'^''^  Wmt- 
of  war,  and  to  the  poài^onTeyl^£!!!!^^J^:^^^^  to  a  state 
wemust  recognise  inthe  Gorei2entTth«  P  *"^l!*"»n«ttwhich 
80,  we  must  permit  that  GoiSTi  m»     P^nfederate  States.  If 

,  Jho  hâve  been  so  appointed.  Do  mv  lea^î^J  ^''^^^  *"  *^  *^°«Ç 
Président  Davis  an5  Secret^rv  SeddonT^^  fnends  présume  that 
^.  Young  bas  been  vaUdl^TotS  ^i'^  ^^^  ^^«*«^  ^r  no 
frôm  16th  June,  1864?  aî.Jit?r  ^^  *  ^'««tenant,  taking  rank 
."The  Président  ITÀ^m^^^^m'^'^^'^^''  ^o^^ 

16th  June,  1864."     Is  tiiaî  falw   nr^  r        *^,*' ;:?^' f~°»  tt^ 
-  attempted  to  urge  that  itTa  S  ""^  *  ^"'««^  ?    ^W  We  not 

^'•- ^?JJ«'»^—We  bave  not  SLo 

the^;^^^^^^ 

fou^ldon  for  such  an  im^teS  '^'  ^'^^  *^««'  ^een  ihe  slightest 

defeiie,  with^imS?''^  ""^^^^  *"^  °^«  *®«%ing  for  ihe 

:i^^-^^^^^''Zr;^^^  ^-«-ge  N.  Sanders 

the  prosecution  ;  while  ZoZ  Z^l^^l^î"  been  quoted  by 

rence  attempted  tobedra^fiL^?fi^^!hy'*^y«^  *»»«'«&- 
you  as  unreKable.  i         ^®  ^^  P*^»  ^  been  alighted  by 

Mr.  Sanders,  as  a  witness,  ^'^  *o  «^  flie  .veracity  of     ' 


"♦:' 

-«?'"' 


;% 


I 


il  fi 


•  ;>> 


-r-'^ 


tj-Jà&fAuA-i  -'«\'.' 


N     ^r 


^' 


76 


Mr.  AbboU  resumed.      My  léarned  fnend,  Mr.  bevlin,  has 
appeared'  to  r«Bt  an  objection  on  th^  groond  that  thia  dooumeilt  did 
not  emanate  from  tho  Prendont  direct.    But'no  one  is  generally 
reoognised  as  beîng  more  compétent  to  décide  -whether  any  named 
officiai  aot  Has  been  doi^e  or  not,  t^an  die  head  of  the  appropriate 
department  of  the  publie  service.    No  one  cpuld  be  more  com- 
pétent to  èstablish,  that  this  partioular^  was  donc  in  a  foreign 
conntry,  thân  the  Secrctary  of  War  fof  fliat  country.    L-etapnose 
we  should  consider  the  Secretary  at  War  for  England  the  oest 
authority,  as  to  whéther  or  no  such  and  sach  persons  vrere  e^v 
commissioned  by  the  Government,  as  officera  in^  the  army  of  that 
country.      If.we  had  written  instrûctàons  from  the  Secretary  at 
War,  or  even  from  the.Deputy  Adjutant-general  of  Militia,  addre'ased 
to  my  leamed  and  gallant  friend.  Col.  Devlin,  as  colonel  of  the 
Prince  of  Walbs  Rifle  Régiment,  by  his  name  and  rank,  we  should 
hâve  no  difficulty  in  sustùning  his  action  on  those  instructions, 
without  requiring  the  production  of  his  commission,  even  if  his  rank 
and  the  gulant  régiment  he  commands  ^ere  less  conspicuous  than 
they  are.    And  if  a  foreign  country  or  Government,  whether  Fédéral 
or  Confederate,  were  to  refuse  to  recôgniee  his  action  under  those 
instfticti<ms  as  an  officer  oî  Her  Majesty's  loyal  volunteers,  he 
vrould  feel  even  more  indignant,  if  possible,  thap  he  has  shown  him- 
self  to  be,  at  the  proposition  that  Lient.  Young  is  entitied  to  the  ben- 
efit  of  a  similar  récognition.    What  would  he  think  or  say  if  hè  were 
told,  weNrill  not  accept  that  évidence  of  your  rank  ;  we  must  havfl 
the  signature  of  Queen  Y ictoiiA  herself  ?  But  really ,  such  obieqtions 
as  this  are  the  merest  trifiing>  and  are  unworthy  to  be  urged  before 
any  CSourt.   It  is  necéssary,  notlrever,*Since  they^ave  been  started, 
to  examine  and  to  answer  them,  and  I  proceed.with  them,  as  a  task 
which-niust  be  completed.  *  .^ 

My  leamed  friends  bave  ur^d  with  conraderable  eamestness 
that  We  must  présume  âiat  Mr.  Toung  did  not  repojrt  to  the 
Secretary  of  War,  his  fige,  remdence,  &c.,  &c.,'nor  take  the  oath, 
nor  accept;  because  they  say  we  bave  not  got  authentic  copies 
of  thèse  documents— and  they  say  de  non  appar'entibut.  et  non 
existavtibM  eadem  evt  fqiio.  Now  I  baye  aiready  shewn  that  none 
of  thèse  prooeédings  were  conditions  precedeirt  to  Mr.  Young's 
holding  the„  rank  of  lieutenant  ;  and  as  they  were  not,  and  were  in 
fact  mère  rot^e  matters  in  the  department  of  war,  thev  were  in 
no  respect  neeéssary  to  be  produced  hère.  The jp<nnt  to  De  proved 
hère  was  not  th#  takh^ig  of  the  oath  by  Mr.  loung,  the  retnm 
of  his  âge,  or  any  of  thèse  minor  formalities.  The  point  was  Mr. 
Yoong's  possession  bf  the  rank  of  lieutenant,  and  that  is  liow  before 
^oor  Hes^fï-  Be^  was^  i^s^G^ated  aad^codexed  to-do .  vAai^lHS 
mstriictions  shew — and  he  did  it.    Is  there  any  better  proof  of  the 


«.■.-wi.i 


V 


{ 


877 


more  com- 


Jettor. 


-j^r.  i«^Mnfl._He  ehould  hâve  accepted  \fm.U\ 

and  dangermia  entèrprises,  without  wE  ^l'J^^  "P^"  *''*°* 
aocepta„ce  of  the  trust  thenonfideft  ï  •  "T'"''^  *  ^" 
Fédérais  to  insist  that  iheTZ^ra^li^  t'^,' -'^  ^  "'^'  ^^^  t^e 
Mr.  Young  did  or  did  not  seîfd  în  f  ^î^  ^  ^""'P^  ^-  ^hether 
the  oath,  f  confess  mt  entirttn^Ce  fr ''  ^  ^^^  '^^  <*J^« 
who  SQ  devotedly  ana  gaEtlf  Si;^  «ïï^!/**!?"""*^  gentieman 
sagethrough  the^  FederïSeTt^R^i"  tl^'TV^''^ 

notin  session  whl'tLapZ°trn7wr''T^-  f^^Senate^^ 
tion  for  the  issue  <tf  a  cLC^t  i^  tiJe^f ?'  ?°t*^«  «^«^nn,^ 
jeasK^n  which  la.ted  tiU  lon/XfSr  CaTelS^i^^^^i"?  it« 
this  confirmation  of  the  Sen&^re^î-W^!  Jfi^v?''^''^^-  If" 
officer  at  ail,  then  the  coSS,  X  ^  *^  f ''''"f  ^"^  toact  as  an 
would  hâve  had  Tle  J^t  a'  .  "^"t  î^  *^«  ^^^^  Octoher 
the  Government  ohhfiontd;rate^r/^''^'^  ^^?  «^«"^«  ^^ 
ing  that  Young  wai'  an  Xer  of  âti^XTfirr*^'"  S  ^«"«^- 
Were  enth^ly  icaonuit  nf  i».!;-  1  ®  •^^*"  '^^^  î  that  thev 

we  know  beti?S^eîe  Serr  oTnT'"  !?  ^'^^S^^^i  and  S 
It would  scarcehrbe  a  sterfuXf '-'^^^^  themselves. 

jodgment  m  this^cLe,  oX^^S^e  C^^^^^^ 

wpay  to  this  Province  tC  ftSwfnn     ^^"§a«rate  Government  to 

documents,  be^g  Ste  Ifith  îl.  îûlf '^**?  °^  ^"'  «^«é 
Young  isiddiZVbTlûs^lfrâe^^^  ^«^«"  2/ 

•pecific-authoriiyas.sKoSaiif-^'''*-^^^'  "  ^^«»     . 
tmder  his  orders,  and  is^ilS  *ïf^  number  of  liï^  S  act 

to  do  ydih  thoTmeTwiïSed  id  r  ^'  "^^P  *°^  ^^»*  h«  « 
•rafficiefct  évidence  thlS-Cn^l^**"^?^  Sure^.this  affords 
^his  Government,  ^0^^  il^^P*^  to  thTsa^oti»^ 

"     ■•  -^         """'*^®'^ffQ'»»Bi  this  authority  and  thofle 


~-,  iTvuiu oeoretarrHeddon  hftifi»  >*:«&..  k*    xi-*^ —  — -— .    ^  «^  u«u 


^  r^  ^'   1 


>it~.Sàâ!'.v>-,. 


-.*•  I-  -s- 


^. 


'} 


î'.. 


878 

mand  for  spécial  service  ;  would  he  hâve  sent  hiiû  by  a  dwagerous 
and  circuitous  route  to  a  distant  frontier  ;  would  he  hâve  authorised 
him  to  draw  rations  and  transportation  allowances  for  himself  and  his 
command— and  ail  as  incidents  to  a  rank  which  he  had  not  accepted, 
and  actually  did  nôt  possess  ?  And  if  he  had.  not  accepted  his  commis- 

*  sion,  how  was  it  that  he  assumed  its  duties,  that  he  did  proceed  by  way 
of  the  British  Province  to  the  Northern  frontier — that  he  did  report 
to  C.  C.  Clay — that  he  did  organîze  his  command  from  among  the 
Confederate  soldiers  within  the  enemy's  Unes,  viz.,  at  Chicago  ;  and 
in  fact  that  he  obeyed  his  instructions  in  the  minutest  particular. 
There  is  no  better  settied  rule  of  law  than  that  the  performance  of 
the  duties  of  an  agent  implies  the  acceptance  of  the  authority — and 
in  fact  conatitutes  such  acceptance  ;  if  indeed  so  obvions  a  principle 
requires  a  rule  of  law  to  enforce  it.  But  even  if  the  Secretary  <tf 
War  had  chosen  to  give  such  instAictions  to  a  oivilian,  and  to  address 
him  by  a  military  titie,  and  if  tbey  were  acted  on,  would  not  such 
civilian  quoad  those  instructions,  hâve  aU  the  privilèges  and  immuni- 
ties  incident  to  the  rank  in  which  he  waâ  acting,  and  was  so  em- 
powered  to  act  ? 

The  pretension  of  the  prosecution  in  this  behalf  is  not,  really, 

/  susceptible  of  argument.  Hère  is  a  man,  recognised  by  the  Govern- 
ment, to  which  he  owes  alle^ance  as  an  oflBcer — recognised  aa  such 
by  repeated  written  instructions  from  the  highest  officiai  in  the  state 
depaitment  of  that  Government.  And  your  Honor,  sitting  hère,  is 
sùsked  tq  deny  that  he  is  such  officer  ;  you  are  seriously  asked  to  say 
and  tlûnk,  that  Secretary  Seddon  was  wrong  in  saying  that  the 
Président  Juid  appointed  Young  ;  that  he  was  prématuré  in  giving 
him  thèse  instructions;  that  he  had  no  right  to  place  Mr.  Young. 
in  command  of  twenty  men  ;  that  the  authority  to  Mr.  Young  to  draw 
pay  and  rations,  clothing  and  transportation  for  himself  and  his 
command,  >ras  null  ;  and  that  he  was  prématuré  in  sending  him,by 

.  way  of  the  British  Provinces,  to  operate  on  the  Northern  frontier 
cS  the  United  States  with  which  his  Government  was  then  and  is 

Vnow  at  war  !  Surely  it  is  impossible  that  àay  Court  in  a  neutral 
country  can  assume  such  a  position  as  this,  and  hold  that  officiai 
docoments  issued  by  the  highest  officiai  of  another  State  hâve  no 
value  at  àH  ;  and  that  contrarj^  to  the  neoessaiy  inference  from  thèse 
documents^  conditions  were  imposed  preliminâry  to  giving  effect  to 
■  tibis  commission,  which  were  never  performed. 

The  question  qf  the  yalidity  of  tins  oommisnon  from  Mr.  Oarter's 
p(nnt  of  view,  I  shall  dÎBoass  at  a  subséquent  period  of  the  argu- 
ment What  I  bave  mtiiérto  sud  respecting  it,  has  been  éhtlrely 

based  on  îteelfj  and  on  tàe,  tiiree  dnanmania  issued  from  the  > War 


Department    But  there  bas  been  «urol  trâtimony  placed  on  re- 
cord about  tiùs  document  to  which  I  shall  refer  as  sustaining  my 


«lto_ 


t»   1^'  s.»-i!*4 


M. 


m 


879 

views.    Adjutanfc  General  Withera  Cn   9n«ï^    u  •    j-  '  ^ 
Oarrol  (p.  â07>,  Dr  PaUen Tn  9mïV  V^?'  ^"g^dier  General 
WaUace  (p.  212\Baf^e^^in^^^^^ 

ont;  ^^f^  ^^  ™tteu,.Uhe  «™e  fi™  and  fa,„ed 
tût  appointent  ?  ^  ^''*  ""  ^  ^^^^^"^  «^  acceptance  of 


ftf  éi.^  IT    *'"'P*^®**  »  "  prepared  by  the  Secretarv  of  War  at  «11  • 
tf^ài  '     ^^  ^*'*'**  P*P«"'  *»»*  he  had  been 


il 

jjrî 


11 


-Lu 


i  A^"« 


«1 


■'>•&*• 


ÎlS'  ^h 


iK  >, 


m 


*  880 

Mr.  Abbott.— The  argument  cornes  to  this  :  The  Secretary  of 
War  had  so  much  time  on  his  hands  as  to  infom  Mr.  Yoùng  in 
three  différent  documents  that  he  had  been  appointed  First  Lieute- 
nant in  the  C.  S.  army  ;  whence  it  is  quite  plain  that  the  three 
papers  were  written  at  the  same  time.  Now,  to  my  mind  it  seems 
quite  plain,  that  if  the  three  papers  had  been  written  at  the  same 
sitting,  Seddon  would  not  l^ve  thought  of  repeating  the  same  mfor- 
mation  three  times.  But  whether  it  be  so  or  not,  no  presumption 
agaimt  the  appointment  can  be  drawn  from  the  fact  of  the  asser- 
tion of  it  being  several  times  repeated.  If  it  were  so,  however, 
J  the  fourth  paper  (N)  would  set  the  matter  right.  It  does  reaUy 
<  sâgr— "  Lieut.  B.  H.  Young  is  hereby  authorized  to  organiize,"  &c., 

^d  does  not  a  fourth  time  inform  him  of  his  appointment. 
y    With  regard  to  the  other  piisofers,  we  hâve  évidence  establishmg 
theh-  quality  and  posMâèn.-    This  is  to  be  fiMi|id  in  part  in  a  docu- 
ment to  whîch  Mr.  Bethune  takes  much  exceptlwK    This  document 
bears  the  signature  of  the  Secretary  of  the  Confe4erate  States  of 
America  and  the  great  seal  of  those  States,  and  wîÈd  specially  di- 
rected  by  Président  Davis  in  person,  to  be  handéd  to  the  Rev.  Mr. 
Cameron,  whom  he  appointed  a  spécial  messenger  to  bring  it  to 
'  this  country;  and  Mr.  Cameron  swears  he  delivered  it  hère  in  the 
same  state  as  when  he  received  it.    After  ail  this,  my  leamed 
friend  (Mr.  Bethune)  states  it  contains  three  forgeries. 
Mr.  Bethune.— I  did  not  say  "  forgery"  at  ail. 
Mr.  JDevUn. — "Altérations." 

Mr.  Bethune.— In  other  words,  I  say  it  ia  a  "  cooked-up"  docu- 
ment. 

Mr.  Abbott. — Thatis  not  much  better  than  the  epithet  I  attnbute 
to  you.  Your  Honor  will  see  that  the  "  altération,"  or  "  cooking 
up,"  consiste  in  this:  that  the  document  in  (juestion  has  evidently 
been  copiecrin  a  very  hasty  manner  ;  and  bemg  thç  muster-rolls  of 
several  compai^es  in  the  Confederate  army,  it  consiste  àlmost  en- 
tirely  of  proper  names,  whîch  are  always  difficult  to  copy  cor- 
rectiy.  It  certainly  contains  many  mistakes  in  spelling  and 
transcription,  such  as  "B.  H."  AUan,'  for  «  B.  R."  AUan,  which 
has  been  "  cooked  up,"  by  being  corrected,  though  Mr.  Allan  is 
not  in  this  case.  In  fect,  your  Honor  will  see  manv  other  iMunes, 
perhaps  a  tenth  of  the  whole,  sinùlarly  "  cooked-up.^*  I  shall  teke 
the  liberty,  Ijolfever,  of  calling  thèse  corrections  m  the^  spelling  of 
thé  names,— inade,  doubtless,  in  comparmg  the  transoript  with  the 
orignal.  At  ail  évente,  those  papers  are  certified  by  the  proper 
officer  to  be  correct  ;  and  it  would  be  more  charitable  as  well  as 
mw  accarate  tosay  that  iàey  «ffl«  incorrectlv  coî»ed  in  the  firat 
instance,  and  that  m  the  names  of  two  of  ihe  prisoners  a  very 
slight  change  was  made,  namely,  that  of  one  letter,  as  ih  the  name 
of  Tevis. 


.«•^•Sbl 


881 

-gr.  ^«jA«n«.~.He  ia  Fevifl  in  both  instances. 

Mr.  Abbott.~-Oh  no.  There  is  a  very  sUght  altération  in  one 
letter  m  each  of  the  names  Tevis  and  âVagfr,  which  tte  le^ed 
gentleinen  opposite  sy  were  «  cooked  up  ;"  from  whLhXy  ^e 

n^y  on  the  muster-roU.    In  the  case  of  Huntley,  it  is  said  tJX 

^f iStS?H  B  tT^^'*?  *^^^*"^.  °f  HutchiSon  were  Xd  tj 
♦W^n  ?•  V  "*  *^®'"®  "^  °°*^ê  in  the  paper  itself  to  indicate 
amt  there  has  been  any  such  addition.    Thfe  name  is  there  bf^ 

^T^'  7f'  ^'^^^^•"    That  the  document  haa  been  p^ 

Mr.  £efhune.—Bnt  he  swears  his  name  is  Hutchinson. 

TtSdof  Willîa^  H^'n'!?  ^T.^  William  H.  Hutchmson 
Xve«îon  nf  tr  ?'^*^!^'  ""^'^  ^'  "°*  *  ^«'y  extraordinarjr 
K  but  li  •!  ï  *  '^^'  '°î^*7'  underipprehension^ 
arrest,  but  whether  it  be  or  be  not  is  of  no  conséquence  to  this 
case.  The  identiiy  of  the  man  aa  William  H.  Huntief  i^  p^ved  W 
his  passport  and  oral  testimony,  as  also  the  fact  thatUisTcileî 
ofÔeorgia  and  a  soldier  in  the  Confederate  army.  It  is  a^J? 
strange  fect,  however,  in  connection  with  the  charge  of  «  cm^^? 
un»  the  muster-roUs  that  ihe^arol  évidence  we%ut  on3 
S^^JV/'^'P"^"!  «î.g«**i»g  ^ese  papers,  exactly  corres^nda 

Tu  f  ' .?' o  "'^  ^^  ^*""  °^  *^^^  P*P«^  aithough  it  w^  iCt 
sible  for  tiie  Secrete?y  of  State  and'pîesident  DaL  wHk  "^S^ 
mg  them  up  '  to  know  what  testimony  waa^  ihen  bebg  give^Ê 
JJon^al.  Strange  to  say,  on  the  musteVroll  of  the  2ndifntucW 
Mantiy,flent  us  from  Éichmond,  butwhichwe  did  not  get  S 

^i  nnVatf  ""Tf^"^  "^^'^  'T? ^^  ^  feUow-soldie«  s^r  he 
was^a  pnvate.  If  tins  statement  is  true,  where  was  the  necessitv 
for  the  paper  bemg  "  cooked-un  »  in  Richmond  ?  And  how  d^î 
ttie  Richmond  cooks  discover  what  had  been  swom  to  since  Mr 
C^eron  had  left  Caoïada  long  before  Withers  ^^£'eSnS^ 
And  rf  the  statement  is  false,  then  Adjutant-Glneral  Withera  ^d 
Dr.  PaUen  hâve  sworn  felsely,  and  by 'some  miracle,  news  of  thdr 

up,    to  endorse  thep  pemiy.  The  same  remarks,  mSreover,  apply 
to  the  case  of  Tevis.    fie  is  swom  to  b^Chem^ulfs  i^?% 


Aentnoky  oavalry.  and  the  muster-mll  «ho^ 
Bmnoiasf  évidence  Before  thèse  muster-rolls*' 


^ras^  Bat  we  ha^ 


ame  to  hand,  that  the 


.    -  -~-  "-.v»w  «uwjo  luuHMsr-rous  came  to  nand,  that  the 

pn^new  were  Confederate  soldiere,  and  it  is  to  be  fouiîd  in  Se 


il- 


■p 


r  •  ■  b 


il 


'h' 


iSiÎ2 


■^iMs^JHétlt^^  àiét 


11' 


T'î 


'••?/ 


il 


r 


882 

testimony  of  Allen  (p.  200),  Botteswortb  (202),  Wàllace  (201), 
Stone  (203),  Withers  (206\  and  Pallen  (208).  This  testimony  is 
qnite  concluaive  :  yet  the  learned  gentleman  spent  half  an  hour 
in  trymg  to  show  that  the  names  of  the  men  were  ""«ooked-up" 
on  the  muster-rolls,  though  those  rolls  and  thfr^arol  évidence  eScactly 
agrée — and  though  he  aJid  his  coUeague  hâve  distinctly  ^ènied 
any  intention  of  disputing;  and  in  fact  could  not  diapiite,' the 
veracity  of  our  witnesses. 

I  would  now  ask  your  Honor  to  look  ai  Young's  instructions, 
and  see  what  their  reid  character  was.  I  propose  to  examme  thia 
affair  from  the  moment  of  time  Mr.  Young  proceeded  to  Bichmond 
and  got  his  cominission,  upon  the  recommendation  of  Mr.  Clay, 
down  to  the  time  of  the  St.  .A^^aos  raid.  I  propose  to  trace  out 
every  particular  of  it,  and  ta  show  by  the  évidence  of  record,  step 
by  step,  what  was  probably  contemplated  by  the  commission  of 
Yoûng  and  his  mission  northward  ;  what  he  and  his  command  were 
autborized  to  do,  and  by  whom  and  how  they  were  so  authorized. 

The  purpose  for  whioh  Mr.  Young  was  commissioned  may  be 
gathered  from  two  sources  of  évidence.  Mr.  Cleary  tells  us  that 
Mr.  Young  went  to  Riohmond  with  a  recommendation  from  Mr. 
Clay  for  a  commission,  "  for  service  within  the  enemy's  lines,  that 
is  within  the  Northern  States,"  on  their  northem  boundary,  and 
but  for  the  objection  of  thé  Counsel  for  the  prosecution,  we  should 
bave  had  full  information  on  this  subject.  Major  Wîdlace  states 
(p.  212)  that  he  was  in  Ilichmond  in  September,  and  that  it  was 
then  notorious  there  that  the  war  was  to  be  carried  into  New  Eng- 
land,  in  the  same  way  that  the  Northerners  had  done  in  Virginia. 

We  know  that  Youna  went  to  Richmond  in  May  to  get  his 
commission,  for  we  find  him  in  Halifax  in  that  month,  about  to  run 
the  blockade  ;  we  see  that  he  was  ordered  on  tho  l'ith  June  to 
"  proceed"  to  the  British  Provinces,  which  would  not  hâve  been 
the  case  if  he  had  been  in  thèse  Provinces  at  the  time  ;  and  we 
find  him  at  Toronto  in  July,  "  on  his  retum,"  in  possession  of  his 
commission  and  of  his  instruotions.  If  my  learned  fiiends  had 
taken  those  instructions  in  thoir  natnràl  order  they  would  bave 
been  more  easily  understood.  The  first  in  order  is  paper  N  (p.  80), 
characterized  by  Capt.  Withers  as  a  dettùl  for  spécial  service  ;  and 
as  the  dettôled  instructions  are  not  contained  in  it,  it  is  called  a  détail 
for  secret  service.  The  second  paper  is  the  one  which  my  learned 
friands  read  last.  It  is  the  paper  R  (p.  216),  which  requirés 
lÀeut.  Young  to  prooeed  to  the  British  Provinces,  and  report  to 
Messrs.  Thompson  and  Olay  for  orders  ;  and  the  th^rd  letter,  paper 

Ofix.  fllftft\    dîrAftfai  Kww   tn  ttmoafld  **  bv  tha  route  îndiofttefl.** 


-tiiat  is  by  way  of  the  British  Provinces,  and  to  report  to  0.  0.  Clay, 
^ïon.,  for  orders,  c^TÎng  hiïn  also  forther  directions  as  to  lus  corn- 


388 

mand  and  as  to  their  organization,  management,  and  maintenance 
Thèse  instructions  appear  to  me  fuU/  to  suat^  the  opiiTn^at 
Lient.  Young  and  his  party  were  to  ojerate  against  thïïorthem 
frontier  of  the  Northern  States.    I  am  speakidg  of  Ss  entireW 
n^spective  of  the  question  ..hether  t^e  Confedexfte  S^reSÏv  S 
War  was  justified  m  sending  the  prisoners  hère,  or  in  giviirilr 
Young  those  orders  ;  or  whether  in  obeying  them  Lient    W 
«ommitted  a  breach  of  our  neutrality/ Am  coûsidenW  3 
redly  wa.  the  intent  and  meaning  of  the  orders  issuK  îf^ 
and  I  contend  that  his  commission  was  actuaUy  given  to  hhn  fo^ 
the  express  purpose  I  hâve  indicated,  by  his  o^  eoverament^ 
that  the  mstructions  given  him  in  writing  cleark  StTthat 
purpose  ;  and  that  in  what  he  did  he  was  merely  cirCg  out  tha 

to  those  Capt.  WiAers  describes  as  being  l^own  in  the  Confedriïte 
senace  as  partizan  rangers,  or  small  b^es  of  men  iSfiSe 
pendently      This  party  was  to  be  organized  within  the  etemyt 
temtoiy  from  among^escaped  soldiersl  they  were  to  be  fuSd 

Trii  rruT'^i-'  ^^J^'-  ^^*^'   to  Ldertake  s^  îenter 

SL     tm%::T''^V^r'  *1^  *^  obey  implicite  Ws 
!a  f^k        .      ^l*y  *^«^  «"esided  near  the  border,  the  inference 
as  to  the  nature  of  thèse  enterprises  seems  plain.     It  couJd  not 
hâve  been  m  Canada  that  thèse  enterprises  were  to  take  effect  for 
^LTi^  fr  ^'*"?«  V  iHiitating  fédéral  agents  in  kitappbg 
people  for  their  armies.     The  only  inteUigible^  object  in  seE| 
J^.  Young  hère,  and  m  authorizmg  him  to  mise  a  plrty  bf  this  del 
cnpùon,  was  to  enable  him  to  assal  in  some  way  thWels  of  h^ 
countay  on  their  northem  frontier.    There  can  be  no  doubt  the 
mtentionwas  to  atteck  their  towns;  but  whether  ZwLto  be 
doue  m  one  way  or  m  another  does  not  appear  from  the  évidence 
Whether  it  waa  mtended  that  they  shouldTage  a  guérilla  waXe 
jnaintaming  a.precanous  existence  within  the  enemy's  bordeîHr 
whettier  they  actuaUy  contemplated  the  use  of  our  temW  Ja^! 
not  be  ascertemed  from  the  testimony  of  record  :  thougT  Vhf'oXr    ^ 
to  orgamze  m  the  territory  of  the  Snemy  would  seeX  i^lfte 

tt-*K      Tn  ^T«'  f**"*""^**  f^^  fro^  Chicago  to  St 
o^STnSî^^  ^"^S"^!  ^^^""^^  ^^  ^^"^^'^  States,  as  only  fot^ 
of  the  number  areproved  to  hâve  passed  through  Canada.  How  the 

way  anpear.  Bwtl  am  not  at  this  moment  deatinir  with  the  auestion 
kir Jto  natter  flfauufa  h*t»iu»>  a^  ci^T!^.^^^^X^^^^Br 


.■«fi 


Bnfaah  govemment;  nor  whether  the  former  has  or  haa  not  «iven 
the  lattor  reason  to  demand  satisfaction  for  violating  ita  terrikay 


»  »   : 


r 
r 


SàtMkfïétbii 


884  * 

If  it  should  become  necessaty,  I  believe  I  can  show  that  thèse  ques- 
tions most  be  answeré^d  favorably  to  the  prisoners.  I  am  not  argu-: 
ing  that  Mr.  Clay  did  or  did  not  render  himself  liable  to  be  sent  ont 
of  tWa  country  fpr  having  carried  ont  the  instructions  of  hia  Govern- 
ment. I  repeat  that  îynah.  to  arrive  at  a  clear  understancUng'of 
the  facts  beiore  I  attemtt  to  deal  with  their  conséquences. 

For  thèse  purposei  then  Mr.  Young  is  required  by  his  instructions 
to  organisé  a  party  'f^witiiin  the  territoir  of  the  enemy"  ;  the  pwrty  to 
be  oftwenty  men,  "  escaped  soldiers     as  they  are  described  in  one 

J>lace,  and  persons  "  in  àe  Confederate  service  beyond  the  Con- 
èderate  lines,'*  as  they  are  characterised  m  another.  So  far  tiien 
I  hâve  established  the  appointment  and  récognition  of  Toung  as  an 
officer  in  the  Confederate  anny  ;  his  instructions  to  proceed  from 
lUchmond  to  the  British  Provinoes  and  to  report  to  Mr.  Clay  ;  his 
authority  to  raise  twenty  men  from  among  escaped  prisoners  or 
from  among  persons  beyond  the  Confederate  lines  bebn^g  to  th" 
Confederate  army  ;  his  directions  to  organize  in  the  territory  of  ^^ 
enemy  ;  and  to  operate  within  the  enemy's  lines. 

Did  he  obey  thèse  instructions  ?  A  short  review  of  the  evideçfce 
•will  answer  that  question. 

Mr.  Cleary  déclares  that  he  did  report  himself  as  dhreçted 
he  retumed  from  Richmond  in  July,  immediately  after  havi 
ceived  his  commission  at  Richmond  upon  Mr.  Clay's  feco 

dation.  .       .  1/ 

Mr.  Bethune. — Does  anybody  prove  he  ever  was  in  RicMmond  ? 

Mr.  Abbott. — Not  from  having  actually  seen  him  in  lUchmond. 
But  it  was  proved  that  hé  was  in  Toronto  early  in  the  spring  of  1864, 
T^hen  he  was  recommended  by  Mr.  Clay  for  a  commissioaT ;  that  he 
léft  Toronto  in  the  spring  with  the  declared  intention  of  ^roceeding 
to  lUchmond }  that  he  was  in  Halifax  in  May  on  his  way  to  Richmond  ; 
by  runmng  tne  blockade  ;  that  lus  instructions  in  Richmond  in  June 
required  him  to  "  proceed"  to  the  British  Provinces ,  and  his  re- 
tum  to^  Toronto  in  July  with  his  commismon  and  instructions  is 
spoken  of  by  Cleanr  and  by  other  witnesses.  Thesè  facts  are  suf- 
ficient  to  prove  a  side  issue  of  this  kind  ;  and  the  only  évidence  to 
the  contrary  is  that  Young  attended  lectures  in  Toronto  in  the  fall 
and,  winter  of  1863. 

Mr.  Bàhune. — And  in  1864  was  living  m  Toronto. 

Mr.  ^Wott.— In  July  1864  he  passed  through  Torijnto,  rep<»t- 
ing  himself  tb'  Mr.  Tht)mp8on  according  to  lus  instructions.  Mr. 
Cleary's  testimony  fiilly  explams  ail  that.  But  itis  also  proved 
that  before  the  raid  waa  planned,  he  wïis  actually  in  Clncàgo,  in  the 
capacity  of  à  Confederate  soldier,  oombimng  with  Ws  brother  sol- 
"~dîerB  and  their  frieùdfl  «id^iÈies  tiiere  fertile  purpose  of  breakmj^ 
into  Camp  Douglas,  and  of  releaâing  the  prisoners  there  oonfined. 


385  "  •      '. 

Counsel  opposite  prétend  thaf  M^  vv^      u  J"  ^^'^'     ^et  ihe 
a  Britiflh  subject  for  ft^  «m«     v     *f  ""^  character  ;  and  was 

breaking  oS  of  the  w    wh^'?  T^^T/*?"  ^'^^^  «^««  *he 
lâeutenlnt,  after  ZZ^^^^  "  promoted  4rom  a  private  to  a 

temtoiy  of  that  el^Z%^.e^ Z^^^r''^''  «°*«  ^^'^  ^  ^^ 
pared  to  péril  his  iZ  t^  TcE'F  ^-^  ^*^'  <langerou8  service  ;  pre- 
iad^notonlySri^kÏLhl!!iuTL  J'  ^^"?-«>\î«"  ^om  di^s;, 
ding  of  deS-  afr  RÎPh^n^  •    f^^*''°''®^*<^ 
andhisiMS^Mfrom^^^^^^^  7^l^P»g  ^is  conunisiSi   , 

at  St.  Alba^b  Octob^jf  ^'!f3S^^^^ 
"  domicUe"  waa  tbe  «  S  ofhî«  nT^  tl""  ^*^^*  =     <***  <^ 
beoame  incapable  of  lelS  îS-Sf^^"?*  ^^'ï^**' î    and  that -fcfe 

to  assert  p,^S^oSî^d%;fr/  "^^  ^\^^™»  'S*»*^^^ 
the  authoriti^Tnor  tiif  eSce°  aî5^*^^^^^  '^  neither sustained  by 
eense  and  to  commoriSr  fn  fel  ïf  *""  '^^°^'^«  *^  ^'«"^o^ 
equidistant  fi«m  th?  CL  W  If '^  -ï^  propositions  about 

HtaesustainedbytiLZ'asny'rolV"^^^^^^     ^""'^  ^' ^ 

i'JÎTmefl  ^tet^'â^^^^^  -y  leamedfriend 

Départaient  of  Stato^at  Richmo^^^i:''^^  "^  ^  """P^^y^  of  «^e 
Thimpson  at  Torrato  ™«v«- fw^'^*'"^  *^  Sécrétai^  to  Col.      • 

211,  216),JrdTrhe  left  tL^'^ïï*^.""*^^^^     ^PP-  210 
(Cleaiy,  p.  211  )        '  «^"'«ds  to  wport  to  Afr.^^Clay. 

Bn^  JS^lfejf  r.i?^  ^*T<^°°«  <«  Proceed  to  the 
wards  weS  lit  Sl^t^  gentlemen  an/shortly  after- 
vention  held  there.  ]ff  Xé  J  nf7>.  "^7^^  ^"^^  ^^  ^on- 
mte  floldiers  at  Chicago  î«E  ?f  ^Je  «ndezvous  of  the  Confede> 
and  thev  àyelB^S'ntT^''^^^  Bettesworth  and  Stone, 
paratio/f^e  att^of  St  lFb3^'î,^^^^  ^«""«^  Pr«- 


L 


^<, 


I 


I    « 

t 


Tfl 


il 


iJ^ 


>J' 


'H 


-; — trS 

W   s 


",i  - 


'.<« 


i! 


iXUlt^^  •  ."^  < 


Mi-  . 


M 


886 

time  and  plaoo  at  which  the  raid  on  St.  Albanfl  originated.    The 
enterttriae  thenplanned  ia  deflcribed  and  provè'd  by  Betteaworth 

and  Stono.  \  a     x.     i. 

Mr.  Betteawftrth  is  the  peraon  who  was  arrested  without  a  war- 
rant, on  a  charge  agwnat  him  at  Quebpc,  on  auspicion  of  boing  one 
of   the  digcharged   priaonere.       After    proof   had    been  made 
beforo  Mr.  Magaire  that  he  waa  not  one  Si  thiem.  he  waa  tranamitted 
in  cuatody  to  Montréal,  where  he  arrived  on  Friday  moming,  and 
waa  confflgned  to  the  gaol — atill  withoùt  a  ahadow  of  a  charge 
againat  him,  and  ratained  there  among  common  malefaotore,  till  the 
following  Tuesday,  when  the  Counael  for  the  proaeoution,  atating 
that  they  had  no  chalge  againat  him,  called  him  out  of  the  dock 
into  the  witneas  box.    They  doubtleaa  hoped  that  hia  intimate  rela- 
tion with  Ae  priaonera  during  eight  daya  of  incarcération,  had  led 
to  confidencea  which  they  could  force  him  to  diacloae  ;  and  the 
idea  waa  certwl^W  mgenioua— if  not  remarkable  for  ita  delioaoy  or 
humanity.    On  étoaa-examination  Mr.  Betteaworth  tella  ua  (p.  138) 
that  during  the  convention  at  Chicago  in  Auguat  last,  there  waa  an 
organisation  going  on  there  for  the  releaae  of  -  the  Confederatç 
piMonera  at  Camp  Douglaa,  ia  which  Ybungand  Smrr  took  part. 
He  waa  aware  that  a  raid  waaVheing  then  orgamaed  there  for.  the 
purpose  of  plundering  and  bummg  the  Northern  towna  on  the 
frontier— and  that  Young  and  Spurr  were  en^ged  in  that  orgam- 
aation.    And  when  afterwarda  examined  for  the^efence  (p.  201), 
he  prorea  that  the  fact  of  Young  having  a  commiaaion,  and  of  his 
collecting  a  party  with  the  authoritv  of  the  Confederate  Government 
for  a  Kud  on  aome  point  of  the  Northern  States,  which  he  waa  to  lead, 
■waa  then  perfectly  well  known  among  the  Confederatea  in  Chicago. 
He  further  provea  that  arma  and  material  of  war  were  atored  in 
Clucago  for  auch  purpoaea,  and  that  theae  raida  were  intended  to 
aerve  the  Confederate  Government,  and  not  my  private  object. 

Mr.  Stone  (p.  203)  ia  atill  more  explicit.  He  waa  alao  with  the 
party  at  Chicago,  and  he  waa  aware  there  of  the  organization  and 
of  âe  whole  plan  of  operationa.  He  was  applied  to,  there,  to  jom 
Young'a  party,  by  Young  himaelf .  He  knew  that  Young  waa  to  be 
the  commander  of  it  ;  he  waa  ahown  the  inatruotiona  to  raiae  it  j  he 
\ra8  aware  that  when  it  waa  coUected,  a  report  waa  to  be  made  to 
Mr.  Comnùaaioner  Cky,  whoae  iaathictiona  were  to  be  their  gmde. 
And  finaUy  l»e  knew  that  the  requiaite  men  had  beenobtained,  and 
that  St.  Albans  waa  the  point  aimed  at.  . ,      ,  ,   ^, 

ThiB  is  actoally  ail  the  évidence  of  recoçd,  with  référence  to  the 

place  wherethis  expédition  waa  or^mized  ;  and  I  would  like  now  to 

be  informed  where  my  leamed  firienda  oppoate  find  the  proof  of 

"^"^ftetr  tiwy"  twrt  ââd  àfl  aggert  witlr^«a^  v^ieaeafle^  tbafc  this 


St.  AUwna  raid  waa  organped  m  Canada.     Where  ia  Ûiere  in  the 


ft-   u^-'^iT' oÂ'i^i^ 


887 

expédition  wMenga^TnC^îda^Z^^^^^  ^  of  tbis 

Canada,  or  that  KiL«  k  rt;lt*ÏJ  P»'^,7««  o^ganized  in 
€«àada.  beyond  Mt.^'IVb  co-^^^^^^  ^tu/ci.  '^"Ir"^ 
Johnson  assertBd  b  his  speech  latZ  S  ♦i/  ^i*^'  ^• 
«authorised  in  Canada^  Keeded  S^J^^^  ^^  expédition  was 
to  Canada."   I  venh^  toC  th«  IST  ^'^^-^  "°^  '«*°™«d 

heZie^^^;7^;",^St"i^^^^^^ 

of  an  expédition  of  this  kbd  ^  cTi  ooS  •''  S'  P^-g^^atipa  .. 
çoimnission  of  the  commrd;r  ?  If  dZ  ,V  "^"^  '^  ^' 
in  Richmond.  Does  it  coS  în  fhl  -  ?  Z-  *^  ""^  organized 
for  the  purpose  Tenterirln  iU  Tf^'ïr  *"  ^^«  ^  P^^^ 
in  Richmonr  Or  does  it  coE  t\d  '  ^  *«^  ^^'^  P^a^e 
and  in  the  engaKemeS  of  Te  ™1  /  "rangement  of  the  plan, 
ail  took  place  â  ChW  And  tl^«  ^"^  ^^"^  '"  ^"*  ^  ^"*  *^'^ 
stood  b/the  organtTn  of^^u'^^:,^^^^^^ 
thiB  pomt  is  in  the  most  nositivA  tarma  i^  •  ^^  «vidence  on 

sofaraBtheevidenrofC^'^;^",^*^^^^^^^  and 

Yonng  and  hi»  men'  ever  met  a^'  tiU  f?!        H°^.  *°,  '^«^  *hat 
vous  at  St.  Aibans     Th«  nL%     '         ^^^  '"^^^^^'^  *^o  rendez- 
«o£rs  who  hiSt;a^'fi5X:iemv^f  ''  -Confederate 
,it  was  «  organized  witC  thV  tenitorv  offh.    ^P^P'^:^  ?  ^^  ^') 

J«.<1.  aot  k^^^  i::^^*^fl^f^  S||fc?«lln.  part,. 


•i 


f  • 


I 


»  » 


/ 


3 


l'-â' 


/T^ 


l&f3£  ,«,>>.  _s    ♦ 


888 


II 
II 

i 


m 


intention  to  attack  the  Northern  frontier  of  the  Fédérais  ;  but  ^e 
do  not  know  the  précise  nature,  of  his  private  instructions,  being 
aware  only  that  he  was  to  report  to  Mr.  Clay,  and  take  detuls 
from  him.  The  well  defined  nature  of  Young's  intentions  when  in 
Chicago,  lead  to  the  ioference  that'  he  knew  what  he  had  to  do, 
èither  from  Mr.  Clay  or  Mr.  Seddon, — ^but  whether  he  did  6r  not,^ 
he  had  a  perfeot  right  to  exercise  his  judgment  m  selecting  his 
point  of  attack,  so  long  as  he  was  careful  to  get  that  'sélection 
approved  by  the  proper  officiai  before  hé  acted  on  it.  He  knew 
that  the  intention  was  to  attempt  to  carry  thp  same  kind  of  warfare 
into  the  Northern  towns  whioh'was  practised  m  the  Southern  cities 
by  Northern  troops.  And  the  expédition  to  St.  Albans  was  sug- 
gested  and  planned  b^  Mr.  Young  himself,  and  Mr.  Clay,  und^er 
the  authority  ^ven  him  by  his  wvemment,  approved  of  it,  and 
required  it  to  be  carried  out.  The  dhrecC  written  authority  for  this 
particular  act  received  from  Mr.  Clay  is  tobe  found  at  page  20& 
of  the  printed  évidence,  being  paper  màrked  P. 

Xt  is  as  follows  :  i 

"itfew./or  Ideut.  Bbnnbt  Youno,  0.  S.  A." 

"  Your  report  of  your  doings  under  your  instructions  of  16th  Juno     . 
"  last,  fipom  tiie  Secretary  of  War,  covering, the  liât  of  twenty 
"  Confederate  soldiers  who  are  escaped  prisoners,  coUected  and 
"  enrolled  by  you  under  those  instructions,  is  received. 

"  Your  suggestion  for  a  raid  upon  accessible  towns  in  Vennont, 
"  commencïng  with  St.  Albans,  is  approved,  and  you  are  authorised 
"  and  required  to  act  in  conformiiy  with  th^  suggestion. 

"  October  6tii,  1864.  / 

"C.  C(CLAY,  JUN., 
"  Corkmùsioner  0.  S.  A." 

The  évidence  of  Dr.  Pallen  (p.  209)  and  of  Mr.  Cleaiy  (pp.^  " 
210  and  211)  prove  the  genuineness  of  tiùs  pèper,  and  if  more 
were  wanted,  there  are  numerous  circumstances  confirmative  of  i^ 
in  every  respect.     Mr.  Cleary  (îoc.  cit.^  was  informed  by  Mil^ 
Clay  himself  a  éhoict  time  after  the  raid  occurfed,  that  he  had 
authorised  it,  and  that  his  authority  was  ii0m^g.    Mr.  Lewis 
Saunders  (p.  217)  was  présent  at  conversations  between  Mr.  Clày 
and  lient.  Young  after  the  retum  of  the  latter  from  Chicago,  in 
which  the  buming  and  pillage  of  SfTAlbans  were  discussed  ",  and  he 
knows  thai  Mr.  Clay  âdvanced  Lient.  Young  f  400  for  the  expenses, 
as  the' instructions  authorised  him  to  do. 

Yout  Honor^rill  perceive  homperfectlv  consistent  ail  this  évidence 
is  with  itself, — ^Mr.  Young  reports  his  doinas  and.lûs  list  of  twenty 
nmënTënrolted  at  Chioagar  ww  he  Badcerltar  «ugiiestions^  fi^ 
nûd  où  St.  iJbans.    M  çf  which  is  in  exact  accoïdance  with  ^ 


li    i    (»     ^/j    '  9*  "j-^v -**'3V^    Kl 


,  «    -    -i      *.  >  aV.  • 


889 

Mr.  sJZ^  '""^  "  "^<"^  by  «>o  instrucUoM  f«m 

(W.^Tf  ^  'fit  "^  ''°°""'  '  f»™iii»ble  document'  and  m»leani«J 

tarisfèffE-^^^'^^crdrî^""^^^^ 

Sn:  ff  r''"  Government,  under  thMo^L^.^Jd 
?med  b4re  votT""'"*'  ïi  *ï^  instructions  he  hefd  Z  S 

encjuiries  àbout  the  fentleln  wL  siJ  ?t      H^ri"T'^ 
indignant  tones  wherftr  p  pÎI    "  ,  ^®**,"-.     ^®  demanda  m 

•mêmmi- 


»<*,tdl.    G<».et™orderedtoIe.™  the  coontry,  whichCud 


'II' 


î^!fc3:NïiU.^  . 


.^l*^^,-'. 


'JvA'- 


"^■*-.    \!t»-  f^  J  "W 


Ali 


,1  ' 


A 


890  . 

but  ,nd  one  ever  pretended  thatbecaïue  hè  was  temporarily  recading 
in  the  United  States  when  he  issued  them,  they  were  suoh  an  abso- 
lute  nullitr  that  those  acting  under  them  were  pirates.  '  But  the 
doâtObent  m  this  case  is  in  reatity  no  letter  of  marque,  and  bears 
no  analogy  to  such  a  letter.  , 

Mr.  Bethune. — Will  my  leamed  fiiend  ppint  out  anv  case  in  , 
which  Genet's  privateers  were  deolared  not  to  bo  pirates  ? 

Mr.  Abbott. — I  st&te  that  Genêt  did  exercise  that  au^thority  as 
fepresenting  the  French  Government,  and  that  he  was  sent  out  of 
the  United  States  because  he  did  so  ;  and  I  say  further  that  no 
persbn  •who  acted  under  those  lettérs  of  marque  vas  ever  charged 
with  ôr  convicted  of  piraçy. 

Mr.  Johnêon. — ^That  means  that  no  English  vessel  ever  caught 
one  of  those  pirates*  and  took  him  prisoner. 

Mr.  Abbott. — What  I  stàte  is  a  sifnple  fact,  that  instead  of 
G«ndt  being  extradited,  he  was  merely  ordered  out  of  the  country  ; 
and  I  say  furthèr,  that  while  histoniliiiànd  wiiters  on  international 
law  bave  discussed  the  conduct  of^r.  Genêt,  and  declared  it  to 
be  iUegal,  no  dictum  is  to  be  found  in  any  of  them  to  the  effect 
that  acting  under  those  letters  of  marque,  destroyed,  in  priva-, 
teers  holdmg  them,  the  character  of  beDigerency.  New  vrith 
regard  to  the  date  of  the  document,  I  refer  the  Court  to  t)ie  case 
of  Hayès  against  David,  where  this  doctrine  of  an  acte  sous  seing 
ptivéj  having  nd  date,  is  discussed  and  settled.    The  Co\urt  çf 

fieals,  in  Ûiat  case,  took  the  view  iiiat  in  the  absence  of  proof  of 
d,  the  presumption  waa  that  the  date  of  document  was  correèt. 
this  being  a.eriminal  matter,  English  laws  must  be  referred  to  ; 
and  if  your  Honor  requires  authority  from  that  law,  to  allDw  that 
the  presumption  is  that  ail  documente  vrere  made  on  the 
beardate  (1  Taylor,  p.  158),  I  cailpoduce  it.  (His  ' 
understoodtto  cuspense  with  jmy  further  autiiorityon  ( 

Mr<  Johnaon,  in  his  tum,  ^ves  us  his  particulaf  view  oT^per 
P^  and  it  consiste  in  a  véhément  burst  of  mdignant  déclamation  at 
thiyie^rpattion  by  Mr.  Clay  of  the  iunctions  of  our  most  gracions 

luineness  of  the  paper  is  concemed,  however, 
Are  preÉumption  :  we  can  trace  it  back  to  the 
itself  L|^  ^-  ^eary  swears  that  innnediately 
lîr.  Cl«|teM'me'd  him  ÛaA  he  had  j^l^horissea 
ihat  tiiôauthority  was  in  my  haads. 
Mr.  Beihune. — ^Do  vou  call  tiiat  évidence  î„ 
Mr.  Ahbctt. — ^I  say  it  is  perfectly  good  évidence.    I  sa^  that  no 
ittwr  »n^cc  cowL  be^  pa»d^eàr  famehing^^he^^aa^qmty  <^ jl 
iper,  tfatin  that  at  the  time  ôf  its  date  the  alleged  wiiter  of  it 
lleseiibed  it  to  a  tlûrd  party,  and  stated  where  it  was^to  be  found  ;  ' 


des 


^;tf^i!vW<i4'-,.«l: 


.L- 


M 


:*»■■ 


/ 


891 


^.1siài:s^Mrl^':±^..'xf^&-!  ^"««f.»»^ 


n  Mr.  Cloiury  oune  to  Montréal,  two  or  thr^^^ 
U**"J  '^.u    .^  told— M  ho  WM  by  Mr.  C\mj  himwlf— 

i^wr*ïi''"*î  *^"^*'  •*«  '^^'^  ^«'  i*'  an/foond  it  to 

1  wift  tho  deaoiiption  he  had  reoeiv«il  of  it.    What  bo- 

^n,^)f  tho  «Mj^icm  atteftpted  to  lA^  oa«t  on  thk  docu- 

rf;„k*  ♦  'A^^  !®*T**  *^T°^  ^*^  adduoed  any  evidonco,  however 

dight,  t#ndmg  to  Bhow  «lit  thie  papor  was  antedated,  ih^llZ 

îî^otinî  ^T  ""^î  ^^  their  objeotion/;  but  in  tho  aKe  of 
wnftoting  teatimonv,  tho  c^nmWances  a^m  to  me  to  be  conclu 
•rive  m  favor  of  t&e  -docuijent,  independent  -  of  the  prwuSS 
jrhich  anses  from  the  ^JurpoXof  the  d^ument  itself    ShTjKd 

S^Torr'^^'.^^'^^Trt^^  ,  gi^at  deal  of  we^t  uZ^a 
Si  L^-''''^T*  '^  .^'-  ^«orge  N.  Sandere,  nobXtaJdTng 
^els  te/J  ««y^unpu^ï^on  upon  the  ve;acity  rf^^^ 
Sr  ân«S^  •  déposition  is  eiW  to  be  taken  as  it  la,  oîtK)t  at 
ail.    Speaking  m  relation  to  one^wntence  in  his  depodtion  thev 

Mr.  J)evlm  denied  he  had  evei  said  so.     On  the  contrary  he 

JlfA  .4Wo«.~.Mr.  Bévlin  wiU  reo\llect  that  he  Wid,  that  when 
»fr    Sanders  had  his  attention  oauid  to  the  fàct,  liât  he  W-- 
»png  wmething  abOut  paper  P,  damaging  to  the  p^er^^ 
wZd  to  JT'^r  *"*  pression  byS^g  that  STSenl 

ro^fnÎf  ^""^*  "^  ^"''^  ''*'''  ^^^'^  '*'^''*^*  ^'^  ^'  Sanders' 

(J^2ii^t^V^  ''f\A  Jf'-  ^""  *y«»  in  his  e«uninatîon,    , 
ff •«:?2 ,        Mr-^C^Y  *°^**  *»*"'  *  *^^  dajs  before  he  left  that 

i^ired  had  not  been  Mmtten  i»  to  that  time.  •  •  ♦    But  he  wvi 

Sr   SLÎdTJtSL  J^^J^^  «entlemen  opposite  admit  that 

Ifr.  San^rs  spld  the  taith  in  hi.  diction,  w^TSke  it  as  itis 

and  thos  duDOéeof  any  ob eetion  »riiim/A«™  ;*  ^-.:--l xi_  _" "» 


cffirefer 
iwearing 


fateebr,  ^hioh  they  diBokûm  most  em,*aticaUy.    But,  in 


•  1, 


\    » 


.lt 


*4.ijJV[«'  ^*   KfL 


^ 


392 

realiiy,  no  part  of  Mr.  Sanders'  testimony  impeaehes  tbis  paper. 
He  States  l^at  Mr.  Claj  was  to  "  write  a  letter,  assuming  ail  the 
responsibility  of  the  St.  Albans  raid."  Now,  you  will  perçoive 
this  is  not  a  letter  at  ail,  nor  does  it  purport  to  assume  the  respon- 
sibility of  the  St.  Albans  raid.  It  is  simply  a  formai  officiai  mémo- 
randum, contùning  authority  to  act — not  récognition  or  assumption 
of  an  act  previously  donc.  It  does  not  correspond  with  the  de- 
scription ^ven  by  Mr.  Sanders,  of  what  Mr.  Clay  intended  to 
Write.  But  Mr.  Clay  did  in  fact  write  such  a  letter  ;  and  if  my 
leamed  friends  will  call  at  my  office,  I  will  show  ithem  the  letter 
which  Mr.  Clay  wrote,  assuming  the  respc^nsibjliBy  of  the  St. 
Albans  raid.  /        ,. 

.  Mr.  Devlin. — Why  did  you  noj;  produce  aii^prove  it  ? 

Mr.  Abbott. — Simply  because  a  letter  writen  in  December, 
assuming  the  responsibUity  of  this  raid,  WDuld  be  of  no  légal  value. 
If  I  had  produced  this  writing,  I  should  hâve  been  subjected  to  a 
morè  extensive  volley  of  questions  than  was  actually  discharged  at 
me  by  my  leamed  friend,  Mr.  Devlin;  for  he  would  hâve  been 
entitled  to  demand  with  more  reason,  and,  doubtiess,  with  a  corre- 
spondin^  increase  of  véhémence,  "  Who  gave  C.  C.  Clay,  jun., 
power  to  ratify  in  December  the  raàà  of  October  19tii  ?" 

This  reminds  me  that  my  leamed  friend  is  anxicus  to  know  some- 
thing  about  Mr.  Clay.  Now  the  évidence  of  record  answers  ail  of 
my  friend's  questions,  that  are  material  to  this  investigation.  It 
proves  that  Mr.  Clay  was  Senator  for  Alabama  in  the  Confederate 
Senate,  and  was  accredited  hère  by  the  Confederate  Govemment 
in  the  spring  of  ■  1864,  as  a  diplomatie  agent  ;  not  an  ambassador 
recognized  by  our  Govemment,  because  we  do  not  yet  recognize 
the  Confederate  States  as  an  independent  establishea  sovereigniy, 
and  therefore  do  not  reçoive  ambassadors  from  her  ;  but  a  £plo- 
matic  agent,  such  as  the  Confederate  States  and  ail  states  hâve  a 
right  to  send  to  any  country,  and  to  entmst  with  such  functions  as 
they  may  deem  suitable. 
'    Mr.  Bethune. — What  is  the  évidence  as  to  bis  powers  ? 

Mr.  Abbott.— 1  bave  the  misfortune  not  to  hold  a  copy  of  Mr. 
Clajr's  commission,  but  I  hâve  in  my  hand  évidence  both  verbal 
and  written  of  the  de  facto  possession  and  exercise  by  him  of  tiie 
powers  and  duties  of  a  diplomatie  age^/;  in  this  country  ;  and  I 
nave  in  writing  the  order  of  tbie  Department  ofWar  of  the  Confe- 
derate Stat^  to  Lient.  Young,  to  obey  such  orders  as  JAr.  Clay 
might  give  him,  which  necessarily  implies  authority  in  Mr.  Clay  to- 


WT    TTuiuu  lie  w  luivuwu,  lu   bfio   uiearoBiî  mumer,   «i   report  w 

Mr.  Clay  in  Canada,  and  to  take  his  instructions  from  Mr.  Clay 


1'  <  T*^»'    !•., 


■"f/ 


•% 


393 


as  to  what  he  was  to  do  ^th  his  party  when  he  had  raised  it,  and 
as  to  the  enterpnses  he  was  to  underfcake  in  the  performance  ôf  his 
duty  in  command  of  that  party  ;  and  he  was  directed  «  impUcitiv 
to  obey  thoae  instructions/'  f  ^  «^jr 

I  would  like  to  know,  with  respect  to  the  opérations  of  Mr. 
ïoung,  what  further  authority  to  Mr.  Clay  was  required,  as 
hetween  the  Confederate  Government  and  Mr.  Young,  thaA  is 
contamed  m  this  paper.  I  would  hke  to  know,  from  any  analogy 
to  any  law,  still  more  from  the  direct  authority  of  any  law  or  pr^ 
cèdent,  in  what  respect  this  évidence  of  authority  in  Mr.  Clay  to 
fZt  ^'*^^*^°f  .*«  ^I-  Young  is  defective.  My  learned'friends 
prétend  thaj  it  is.  I  ask  then,  in  what  respect  and  fpr  what 
reason  ?    The  test  of  the  authority  of  an  agent  is  the  bmding 

f«  ;«  A  ^  '^^  T\^^  P^^^P^-  1°  *1^«  case  a  written  pape? 
w  issued  from  the  Oonfederate  States  War  Department,  addressed 
to  Mr.  Young  as  an  officer  of  the  C6nfederate  States  army/direct- 
Z^rT-  \''^P°'*  *?  fr  person,  proyed,  by  four  witne48,  to  be 
sS  ?AA-  «T'^t-"^  diplomatie  ageit  of  ihe  cSederate 
btates  and  directmg  him  to  obey  implicitlv  that  age^s  orders. 

be  no  doubt  but  that  the  ConfeJerate  Government  irresponsible 
iLf®'°-V  ^^  évidence  would  be  conclusive  against  the  Confe- 
dératés,  if  our  Government  tumed  upon  them,  and  mi5e  Mr.  Clay's 
gmng  orders  to  Mr.  Young  in  Canada,  a  subject  of  complaiLt. 
Ihose  States  could  not  escape  from  their  liabiUty  to  give  us  satis- 

«ît^n^l  .  iT  ^Ï^T  ""f'^  ^^^^  J"«*  «»"««  ^  cîmplaint)  by 
jaymg  that  although  they  had  ordered  Lient.  Young  to  go  to  Mr^ 

geUhat  they  had  not  ordered  Mr.  Clay  to  give  him  those  instruc- 

h.^^'i  '°  ■^'^^^''  ^P^y  ^  *^«  «oq'^y  ^ï^o  Mr.  Clay  is,  we 
hâve  the  évidence  of  several  witnesses.  Adjt.  Genl.  Wi&er^  (p. 
^b)says  he  was  Senator  for  Alabama;  Dr.  Pallen  (p-  209) 
taiows  that  he  was  a  Commissioner  of  the  Confederate  Stetes  of 

t^nmZ  '  fïi^^n"^.  $PP-  ^^^^1>  ^°«^«  ^'  a°d  says  he  was 
îv  fW  P*'^  ^^  Confederate  Govemi^nt ,  that  he  was"appointed 
by  that  Goyemment  a  Commissionerlbroad,— and  that  that  was 
£îl  ïî  '""m  °**'™.*'^-  "  ^  *"  Peisonally  aware  df  that  fact," 
ï^iL  WK  "^1  ^^.,?*  P-  212  he  adds,  «  the  said  Mr.  Cky 
«  IZ^^  *  ''î'^  '^^  "^^^y  °®<'«''-  He  madrÉs  reports  to  thi 
«  w  K  ^^P""'""®"*'  ^^<^^  ,^88  the  civil  department  of  the  State  ; 
«  i  V  •    .^  *™P^®  ,rY®"  ^*  civil  and  militaiy  :  but  he  had  no 

hPa     !      ^'  ?*^  .  Y*«  **»«»»  ewrcising  the  authority  of  a  Con- 


V  ) 


m 


V 


Li^Wk&Mb-^-.' 


KS.  Mf 


4. 


f 


hll'bl 


^894 

With  such  Mormation  as  ms  before  him,  I  thiok  that  my  learned 
friend,  Mr.  Devlin,  might  hâve  spared  us  the  réitération  of  his  first 
question.  Or,  if  he  felt  it  essential  to  the  interest  of  his  cUents, 
or  to  the  contour  of  his  periods,  that  he  should  ask  it  so  often,  or 
ask  it  ail  ;  that  he  might  hâve  answered  it  also. 

The  other  questions  respecting  Mr.  Clay  may^be  as  easily  and 
more  shortly  answered.  He  came  down  to  Mon&eal  at  the  time  of 
the  trial  before  Mr.  Coursol,  to  give  his  évidence,  if  necessary,  on 
behalf  of  the  prisoners,  and  hé  remained  in  Canaiia  till  they  were 
discharged.  'Ànd  he  was  heard  from,  by  Mr.  Cleaiy,  at  Halifax, 
in  the  end  of'December  last.  I  regret  that  I  cannot  further 
gratify  my  learned  friend's  curiosity  ;  and  that  I  am  unable  to  give 
him  ^ny  further  information  about  Mr.  Clay,  nor,  in  fact,  about 
either  "  that  money,"  or  the  fa;mous  carpet  bag,  which  was  sup- 
posed  to  contain  it. 

I  think  therefore,  that  without  fear  of  contradiction,  I  may 
safely  assert,  that  we  hâve  proved  that  Lieut.  Young  did  receive 
instructions  from  Mr.  Clay,  as  Confederate  Commi.ssioner,  both 
verbally  and  in  writing,  to  make  the  attack  upon  St.  Albans  ;  and 
also  repéîved  from  ^  him  funds  for  the  expenses  of  the  expédition. 
Wil^KTeference  to  the  attack  itsélf,  your  Honor  will  recollect  that 
t^e  only  trace  we  hâve  of  the  party  from  the  time  it  was  organized 
/in  ChicagO)  and  arrangements  made  to  attack  St.  Albans,  is  the 
/  appearance  of  Young  at  Mr.  Clay 's  house  at  St.  Catherines,  when 
he  reported  himself  an^jl  party  ;  and  on  the  train  from  Toronto  ;  and 
that  of  himself  and  three  otiiers  of  the  party  at  St.  Johns,  in  the 
begmning  of^  October.  That  is  the  only  évidence  to  support  the 
often  repeated  assertion  that  this  party  of  twenty-one  were  organized 
in  Canada,  and  proceeded  from  Cana(fai.  Where  is  the  proof  that 
the  other  seventeen  proceeded  from  Canada  ?  And  if  there  be  no 
proof  of  it, — and  I  assert  there  is  none,-4^y  what  light  is  it  that  my 
learned  friends  reiterate  it  so  persistentiy  ?  In  fact  this  is  ail  we 
hear  of  the  expédition  tiU  ^e  leam  from  Mr*  Bishop  and  the  other 
St.  Albans  witnesses,  of  their  having  taken  possession  of  the  tOwn. 
As  to  the  attack  upon  St.  Albans,  the  facts  seem  to  be  simply  thèse: 
The  party  appears  to  hâve  met  at  St.  Albans. at  il^ préconcerted 
time.  In  the  middle  of  the  aflemoon  they  took  possession  of  the 
town  at  severkl  points,  at  which  they  placed  pickets  ;  they  seized 
apon  several^f  Ôie  leading  citizeçs  whom  they  placed  nnder  guard 
in  the  principal  square  ;  they  set  fire  to  the  town  m  several  places  ; 
seized  upon  three  of  the  banks,  and  pillaged  them  ;  and,  while  so  en- 
gaged,  took  from  Breek  a  bundle  of  note8,^hieh  he  broug^t  into  one 
-m  thera  in  his  himdï  AU  thèse  aots,  from  begimûng  to  end,  ^y 
declared  themaelves  to  be  doing  as  Confederate  soldiers,  in  retaliation 
for  outrages  committed  by  Northern  soldien  in  the  Confederate 
States. 


,  A'-    .f,.J     UJ^ 


l' 


i}\ 


895 

M'.Sethune.-^Dii  they  take  awajr  any  prison^fs  ? 

Mr.  Ai>b0tt;—^o^ihej  did  not.  They  took  possession  of  the 
town,  çiUaged,  and,  as  far  aa  they  were  able,  set  fire  to  it.  If  they 
couldhave  done  so,  they  would,  doubtless,  hâve  bumt  the  whole  of 
it.  They  did  aa  much  mischief  as  they  could,  tiU  driven  ont  by  the 
citizens.  My  leamed  friends  are  difficult  to  please.  They  hâve 
^red  us  with  glowing  dénonciations  of  the  outrages  committed 
-  *W®A^  '  ^®*  *^®y  ^^^  P®®*"  *°  complain  that  the  dignitaries 
^ff*;-^*^*^  ^^^^  ^^^  bundled  upon  bare-baeked  horses,  and  hur- 
^:ge«  mto  Canada.  If  they  had  been,  we  should  hâve  had  outcries 
Jom  them,  which  would,  if  possible,  hâve  surpassed  in  véhémence 
those  of  my  leamed  friends;  and  I  hâve  no  doùbt  their  feelings 

^^ÏÎaa     ,.     "^  **  ^®^*  ^  ^"*®-    ^"*  I  say  that  a  town  of  3,000 
or  4,000  inhabitants,  twenty  miles  within  the  Unes  of  a  hostHe  fron- 
faer,  oflfere  mmj  difficulties  to  its  capture  by  twenty  men  ;  and  that 
it  is  not  surpnsmg  that,  having  held  this  town  half  an  hour  ;  having 
done  their  best  to  bum  it  and  injure  its  institutions,  they  should  be 
dnven  from  it  by  the  citizens.    Nor  is  it  astonishing  that  one  man 
waa  killed  m  the  skirmish.    And  this  is  the  horrible  murder— the 
frightful  slaughter— that  mv  leamed  friends  on  the  opposite  side 
talk  so  much  about.    And  I  présume  that  it  was  with  référence  to> 
thifl  that  they  cited  their  authorities  from  Vattel  and  Halleck,  to 
prove  that  assassination  was  not  recognized  as  being  lawful,  under 
toe  law  of  nations  !    They  deny  that  the  prisoners  were  fired  at. 
The  facts  are  stated  by  a  witness  we  brought  hère  (p.  216)  ;  and" 
he  haa  smoe  been  arregted  and  put  on  hia  t^Ed  for  treason,  for 
so  stating  tmthfuUy  in  évidence  ;  who  tells  us  that  he  foUowed 
them  along  the  street  for  a  quarter  of  a  mile,  firing  a  revolving 
nfle  at  them  as  fast  as  he  could,  and  that  other  citizens  did  like- 
wise.     We  hâve  also  proof  of  numerous  shots  being  fired  and 
reports  heard  ;  and  from  the  description  of  the  whole  scène,  even 
by  witnesses  determined  to  say  as  little  as  they  could,  and  from 
what  we  know  must  hâve  occurred  under  such  circumstances,  it  is 
plain  t^t  the  citizens  rose  in  every  direction,  and  that  the  little 
party  waa  driven  from  the  town  by  overwhehning  numbers.   And  it 
was  m  the  midst  of  this  confused  street  skirmish  that  Morison  was 
shot.    If  we  had  been  in  a  position  to  give  evicLence  of  the  fact,  we 
codd  hâve  proved  that  the  prisoners  were  driven  out  of  the  town, 
mtb;three  men  wounded,  one  of  whom  languished  for  weeks  in 
Monfreal  under  surgîeal  treatment,  and  we  know  that  the  casualties 
oniàe  Fédéral  ade  consisted  of  one  man  killed,  and  one  man 
woimded^  bothin  the  street,  in  the  exchange  (rf^Aotsbetweenthô^^ 


lojffle  parties.  This,  I  repeat,  is  the  horrible  murder,  and  the 
nefiuTous  robbery  and  pillage  on  which  my  leamed  friends  opposite 
bave  expressed  themselves   so   forcibly,  and  wWch  they  havft 


'il 


I  ij 


s  il 


.iafei,jf, 


!■! 


H 


ih 


896 

denounced    aa    aomething    porfeotly  unprecedented  in  atrocity. 
What  !  they  say,  burning  and  pillaging  an  undefended  town  and 
unreaisting  citizena,  a  hoatilo  act!     Such  a  doctrine  waa  never 
heard  of  !     None  buty  Southern  félons  and  rebela  could  poaaibly 
be  guilty  of  such  ;  and  from  crimes  like  thèse,  offences  against 
the  laws  of  nature  and  of  nations,  the  enlightened  and  humane 
principles  of  international  ]aw,now  obserred  by  ail  civilized  nations, 
withdraw  the  shield  !    This,  vre  are  told,  is  not  a  raid.    Pillaging 
banks,  and  setting  fire  to  the  town,  are  acts  which  are  not  covered 
by  instructions  to  mako  a  raid  !    I  do  not  know  what  kind  of  harm- 
less  military  évolution  ia  conveyed  by  the  tenn  "  raid"  to  the  minds 
of  my  learned  friends  ;  but  it  ia  plain  that  they  require  enlighten- 
ment  on  this  point,  and  I  will  undertake  the  task  of  instructing  them. 
I  will  read  to  them  from  a  Fédéral  book  a  description  of  a  Fédéral 
raid.    A  raid,  which  my  loamed  friend  Mr.  Bethune,  I  présume, 
vill  consider  an  act  of  war,  and,  porhaps,  even  an  act  of  war  «er  se 
—a  kind  of  act  of  war  of  which  we  hâve  heard  a  great  deal  both 
from  him  and  Mr.  Johnson.     No  doubt  the  last  named  gentleman 
will  be  pained,yet  amused,  at  the  "  ludicrous  extravagance  of  the 
pretence,"  that  in  coing  to  a  peaceable  village  in  the  middle  of  the 
day,"  and  "  easing^'  the  old  ladies  of  their  chairs  and  tables,  their 
cooking  utensils  and  their  bedroom  furniture,  the  persons  of  whom 
I  am  about  to  speak  "  can  be  presumed  or  believed  to  bave  acted  as 
"  a  military  force — having  lawful  authority  from  a  brave  and  civi- 
"  lized  people  for  what  th«y  did."     Those  notions  of  "  wariike 
achievements  and  martial  glory,"  which  he  has  formed,  will  reçoive 
another  8hock,.when  he  learns  how  the  Fédérais,  whom  he  doubtless 
believes  to  be  modela  of  modem  belUgerents,  carry  on  warfare. 
Unless,  indeed,  he  adopta  the  doctrine -of  Counsellor  Sowles,  (page 
145),  who  being  exatomed  profeaaionally  for  the  prosecution,  gives 
his  opinion  as  a  counsellor-at-layr,  that  the  act  charged  agamst  the 
prisoners,  if  done  in  Georgia  by  Fédéral  soldiers,  under  a  Fédéral 
oflScer,  would  not  conatitute  robberjr — because,  he  savs,  Georgia  is 
a  State  in  rébellion  against  the  United  States,  and  Vermont  is  not. 
Indeed,  the  adoption  of  thjp  view  of  the  law  by  the  Counsel  for  the 
Crown,  would  not  be  more  remarkable  than  the  mode  in  which 
"watching  the  caao  for  the  Crown,"  is  exemplified  by  their 
speeches. 

But  I  must  prooeed  with  the  deacription  of  what  a  "  raid  "  is, 
as  practiced  by  my  leamed  friends'  cliente.  I  shall  read  from  No. 
42  of  the  Rébellion  Record,  a  New  York  publication,  of  reapectable 
character,  which  I  peroéire  waa  frequently  referred  to  for  information 
jn  New  York,  oq  tU  trial  of  the  cre w  of  the  Savannah.  The  es— 
pedition  I  sjjeak  of  waa  commanded  by  Mr.  Montgomery,  a  Fédéral 
officer,  who  ia  sud  to  hâve  prooeeded  up  the  Altamaha  river  to  the 


m 


397 

viUjge  of  Darien,  on  the  llth  June,  1863,  wth'ç,  pàrty  of  neera 
Mldiers  «to  présent  his  compUments  to  the  recela  ôfGeoreia '* 
No  motive  is  stated  to  hâve  existed  for  this  raid,  nor  does  aily 
order  appear  to  hâve  been  given  for  it  by  any  officer  of  rank 
Danen  waa  a  town  of  about  two  thousand  inhabitants;  and  as 
Montgomery  approached  it  in  an  old  East  Boston  ferry-boat,  pro-  ' 
moted  to  the  rank  of  a  gun-boat,  he  thfew  shells  mto  it  which 
drove  the  mhabitants  «  frightened  and  te'rtôr-stricken  in  every 
du^ction.  Not  an  armed  person  appeared  to  dispute  his  landme 
or  offer  any  résistance.  ;'  ** 

«  Pickets  were  sent  ont  tô  the  Hmits  of  the  town.  Orders  were 
then  given  to  search  the  town,  take  what  coul(ïbe  found  of  valu© 
to  the  vessels,  and  then  fire  it.  Officers  then  started  off  in  every 
direction,  with  squads  of  men,  to  assist.  In  a  very  short  timo 
every  house  waa  broken  into,  and  the  work  of  piUage  and  selec- 
tion  was  begun.  ♦  *  ♦  *  Soon  the  men  began  to  come  in 
m  twos,  threes,  and  dozens,  loaded  with  every  species,  and  ail 
sorts  and  quantities  of  fumiture,  stores,  triukets,  ete.,  ete.,  till 
one  would  be  tired  enumerating.  We  had  sofas,  tables,  pianos, 
chau^  mirrors,  carpets,  beds,  bedsteads,  carpenters'  tools,  coopeV 
tools,  books,  law  books,  account  books  in  unlimited  supply,  china 
^^  sets,  tmware,  earthenware,  Confederate  shin  plasters,  old  letters, 
papers,  ete.,  ete.,  ete.  A  private  would  come  along  with  a  slate, 
yard  stick,  and  a  brace  of  chickens  in  one  hand,  a  table  on  his 

«  T^'        ™       ^^^^^  ^*°**  *  "^P®  ^^*^  *  ^^^  attached.  *  *    • 

'•  Droves  of  sheepand  cows  were  driven  in  and  put  aboard.  *  *  ♦ 
Danen  contained  from  seventy-five  to  one  hundred  houses— not 
countmg  slave  cabins^  of  which  there  were  several  to  every 
house,  the  numbér  vanring  evidently  according  to  the  wealth  of 
the  propnçtor.  One  fine  broad  street  ran  along  the  river,  the 
rest  starting  out  from  it.  AU  of  them  were  shaded  on  both  sides, 
not  with  young  saplings,  but  good  sturdy  oaks  and  mulberries, 
that  told  of  a  town  of  both  âge  and  respectability.    It  was  a 

^^  beaubful  town  ;  and  never  did  it  look  both  so  grand  and  beanti- 
fui  as  m  its  destruction.  As  soon  as  a  house  waa  ransacked,  tho 
mateh  was  applied,  and  by  six  o'clock  the  whole  town  was  in  one 
Bheetofflame.  *  •  *  The  South  must  be  conquered  inch  by 
mch;  and  whatwe  can't  put  a  force  in  to  hold,  ought  to  be 

^  destroyed.    If  we  must  bum  the  South  out,  so  be  it.    ♦    *    • 

'I  We  reached  caûip  next  day,  Friday,  about  three  p.m.  The  next 
mommg  the  plunder  waa'divided,  and  now  it  is  scattered  ail  over 

^^  camp,  but  put  to  good  use  the  whole  of  it.   Some  of  the  quartera 
'ffy  ^ook  princely,  with  their  soft»,  divans,  pyn<^^tej^' 
This  waa  a  raid  !  and  what  is  more,  it  was  a  Fédéral  raid  !  and 

what  is  more  still,  it  was  described  in  détail  to  the  Fédéral  people 


-lùso  >» '     .«'   tr'> 


*5  » 

é  -> 


11 


■.L. 


r**wt^:?^  *  Wilt*#\ïf"fl|ifllÇ 


898 


eém 


■with  pride  and  exultation,  as  a  "  bold,  rapid,  and  succesaful  expé- 
dition." To  an  impartial  eye  it  certainly  does  net  présent  many 
of  thê  featufes  of  boldness — nor  would  it  seem  to  possess  those 
characteristics  of  "warlike  achievements  and  martial  glory" 
of  which  my  leamed  friend  bas  spoken,  and  which  according  to  the 
ténor  of  bu  argUMeut  would  bave  to  be  présent  in  every  hostile 
act,  to  save  tbe  beuigerent  from  the  punismnenf  of  a  félon.  The 
whole  affair  seems  to  bave  been  the  idea  of  an  offîcer  in  coùimand 
of  a  régiment  ;  and  his  "  programme  "  is  cooUy  stated  to  be  to 
carry  off  i^l  he  coiild,  and  bum  and  destroy  the  remainder.  He 
takes  with  bim  a  small  veÉsel  for  the  purpose  of  carrying  away  the 
spoil.  He  enters  a  ^seaceful  village  from  which  most  bf  the  inhar 
bitants  bave  fled,  and  where  he  met  with  ^o  résistance  ;  he  sacks  every 
house,  çarries  off  everything  w*rth  hî^Ving,  and  bums  and  utterly 
destroys  every  building  in  it-  of  eveiry  kiryi  and  description.  I 
hope  my  leamed  frie^s  now  understand  what  a  Taid  is — and  how 
far  the  instructions  ot  Mr.  Clay  to  make  a  raid  on  St.  Albans, 
authorised  the  pillage  of  three  banks,  and  of  the  complainant,  Mr. 
Breck.  K  danger  and  deadly  strife  be  éléments  of  a  hostile  act, 
I  must  be  permitted  to  claim  for  the  attack  on  St.  Albans  a  more 
perfectly  warlike  character  than  that  upon  Darien  possessed.  If 
the  test  is  to  be  ^he  extent  to  which  wanton  destruction  and  pillage 
of  private  property  were  carried,  I  cheerfully  yield  the  palm  to  the 
"  warlike  achievement  "  of  the  sacking  and  buming  of  Darien,  and 
freely  aHmit  that  Mr.  Montgomery  àcquired  thereby  more  "  mar^ 
glory  "  than  fell  tb  the  lot  of  Mr.  Young. 

The  sacking  and  buming  bf  Darien  gives  us  an  excellent  practi- 
caJ  exempiification  of  the  doctrine  of  the  Fédéral  States  as  to  what 
constitutes  an  act  of  war.  And  it  forms  the  best  possible  com- 
mentary  on  the  scora,  the  indignation,  and  the  horror,  which  the 
leamed  Counsel  bave  been  at  such  pains  to  express,  at  the  compa- 
ratively  insignificant  injuries  inflicted  by  the  prisoners  upon  the 
town  of  St.  Albans.  I  f^j  that  I  can  find  the  record  in  this  book 
of  a  thousand  times  worse  acts  than  the  St.  albans  raid,  committed 
in  a  thousand  instances  in  the  South,  by  Fédéral  troops,  since  this 
was  began.  r 

Mr.  DevUn. — That  is  beside  the  question. 

Mr.  Ahbott, — If  the  character  o^  the  raid  is  beside  the  question, 
why  bas  my  leamed  friend  urged  with  such  véhémence  as  an  argu- 
ment for  the  extradition  of  thèse  men,  that  their  acts  in  the  raid 
on  St,  Albans  were  atrocities  prohibited  by  the  laws  of  war  ;  un- 
precedentéd  in  modem  warfare  ;  and  so  répugnant  to  the  prin- 
ciples  which  regulate  the  conduct  of*  nations  during  war — ^^that 
the  inuniciiaal  law^  which  ia  «anally  gjlent  twfgy  arma^  mnst  ^ 


aïbnsed  towreak  iito  vengeance  upon  iàeir  perpetrators.    Ifmy 


^ 


■*>*'^ 


tif*a. 


d,  committed 


•   89Ô  ■      " 

learned  friend's  argument  was  worth  anythbg,  my  reply  destroys 
it.  If  it  waa  worthless  and  "  beside  the  question,"  he  should  not 
hâve  used  it. 

p-  -  Fridat,  March  24th. 

fffiw.  Mr.  Abbott,  résuming  his  argument  before  Mr.  Justiojp 
Snmth,  said  : — In  my  address  of  yesterday  I  endeavored^withas 
much  care  and  impartiality  as  I  was  capable  of,  to  go  over  the  evi- 
f  dence  bearing  upon  this  case.    It  seemed  to  me  that  upon  the  évi- 
dence must  chiefly  dépend  the  eflFect  of  the  principles  of  law,  that 
hâve  been  cited  as  being  applicable  to  it.    Thèse  citations  hâve, 
been  numerous  and  extensive  ;  and  if  they  hâve  appeared  to  çon- 
flict,  it  is  chiefly  because  one  party  quote  the  gênerai  nlles  as  estab- 
lishing  his  case,  omitting  the  discussipn  of  the  exceptions  as  being 
unnecessai^;   while  the  other- insists  that  the  exceptions  alone 
apply  and  bas  cited  them  only.     To  arrive  at  the  real  state  of  the 
law  upon  the  facts  proved,  it  therçfore  appears  to  me  to  be  neces- 
sary  that  the  authorities  on  both  sides  should  be  taken  together. 
Glie  gênerai  principles  of  law  applicable  to  circumstances  of  the 
kind  under  considération,  hâve  been  set  forth  by  my  learned 
friends  on.  this  sidfe.    The  learned  gentiemen  opposite,  however, 
hâve  endeavored  to  make  out  that  there  were  exceptions  t»  those 
gênerai  principles,  and  that  this  was  one  of  them.    Now  it  is  to  : 
the  examination  of  the  question  whether  there  are  such  exceptions, 
and  if  there  be,  whether  the  circumstances  .of  this  case  fall  within 
them  ;  and  again  if  they  do,  to  what  extent  they  affect  the  abstract 
rights  of  belUgerents,  that  I  shall  chiefly  address  myself  to-day. 
X  think  I  shall  be  able  to  show  that  in  one  sensé  there  are  excep- 
tions to  the  Incontestable  rules  of  law  as  to  belligerent  righte,  as 
we  bave  laid  them  ,down  ;  but  in  another  sensé,  and  in  that  sensé  < 
m  which  those  rules  are  to  be  applied  to  my  clients,  there  are  no 
such  exceptions.    I  admit  that  there  are  certain  customs  of  war 
usually  observed  among  nations  in  time  of  war,  adopted  to  soften  its 
asperities,  and  mitigate  its  horrors  ;  but  I  deny  that  such  cusloms 
constitute  law  binding  upon  any  belligerent,  or  enforceabfe  by  any 
tribunal.    In  pursuing  the  course  which  I  bave  thus  laid  down  for 
myself,  my  views  will  be  based  principally,  if  not  entirely,  upon 
the  authorities  ah^ady  placed  before  your  Honor. 

When  I  lefl;  off  yesterday,  I  conceive  that  I  had  ftdly  discussed 
the  whole  of  the  facts  exhibited  by  the  évidence  ;  and  I  submit 
that  those  fi^ts  may  be  sudîmed  up  as  establishing  that  the  pri- 
Boner  Young,  then  being  an  offidfer,  of  the  Confedépate  States, 
actaally  commissioned  for  the  pui^poee  of  haraasing  the  Fedend 


Stfttefl  on  their  northem  frontier,  oi^gaufeed  a  party  of  twenty  C^ 
federate  soldiers  within  the  enemy's  Unes  (namely  in  Chicago),  in 


i 

''M 
■'4 


■Il 
ft  ■ 

i' 

\  ; 

ri 

m 


3,] 


} 


■■<:'-m 


m 


'•lî 


IT' 


i  400 

conformity  with  instructions  ^ven  to  him  by  his  Government  ;  and 
that  with  this  party  of  men,  luider  the  sanction  of  the  officiai  of  the 
Confederate  Government  to  whom  he  was  referred  for  instructions 
he  made  an  attack  on  the  town  of  St.  Albans  ;  that  he  pillaged  it' 
and  set  fire  to  it  as  far  he  was  able  ;  a£d  that  on  bemg  driven  out 
of  it,  he  took  refuge  in  Canada.    Thèse,  I  think,  are  facts  clearly 
established  ,by  the  évidence.     My  leafûed  friends  opposite  go 
further,  and  say  it  is  proved  that  the  raid  was  made  from  Canada. 
I  contend  it  is  plain  Uiat  the  particular  incursion  actually  carried 
out,  origmated  and  waa  planned  and  organized  in  Chicago,  in  the 
United  States  ;  and  that  there  is  no  proof  tending  in  any  way  to' 
show  that  the  attack  ori^aled  hère,  or  that  it  proceeded  from  hère. 
And  I  say  that  the  only  évidence  ofièred  on  this  latter  head,  is  that 
which  estabUshes  that  Young  himself  came  to  Canada,  after'be  had 
organized  his  little  party  in  Chicago  and  settled  upon  the  point  of 
attack  there  ;  and  reported  his  doings  to  Mr.  Clay  ;  getting  his 
sanction  of  them  after  he  had  so  planned  and  arranged  the  enter- 
prize  within  the  territory  of  Ûie  belligerent;  and  also  that  three 
of  the  persons  who  acompanied  him  on  the  raid  were  iraced  in  a 
part  of  Canada,  shortlv  before  the  attack  on  St.  Albans.    This  is 
ail  that  is  proved  by  the  évidence  adduced,  and  it  does  not  prove 
the  pretension  of  the  prosecution  on  this  point.  I  hâve  laid  the  whole 
of  it  fuUy  and  fairly  before  your  Honor,  exaggerating  or  extenu- 
ating  nothing  ;  and  as  my  leamed  friends  hâve  followed  me  closely, 
and  hâve  failed  to  point  out  any  particular  in  which  I  hâve  omitted 
any  proof  favorable  to  their  view,  or  distorted  any  of  the  state- 
ments  of  the  witnesses  ;  I  think  I  may  assume  that  my  argument 
has  been  free  from  any  objections  to  its  faimess  and  impartiality. 

Nôw,  I  wish  to  call  your  Honor's  attention  to  the  arguments  by 
which  my  leamed  friends  opposite  endeavor  to  destroy  the  case  we 
haye  thus  made  out.  I  take  Mr.  Carter's  objection  first  ;  because 
it  is  an  objection  to  the^^^efe  of  any  commission  which  çould  be 
issued  by  the  Confédéral  States,  and  therefore,  takes  a.  wider 
range  than  mère  objections  to  that,  with  which  I  contend  Young 
was  fortified.  He  says,  in  his  proposition  submitted  to  your  Honor, 
that  I*  The  Queen's  Proclamation  of  May,  1861,  is  the  exercise  of  a 
"  national  right,  '  the  eflFect  of  whirfi  at  most,  is  to  regard  botli 
"  partiet  as  entitled  to  helligerent  ri^hts  or  privilèges  of  commerce';  ' 
"but  thèse  rights  must  not  be  confounded  wilh  the  right»  and 
*^  privilège»  re»ulting  from  récognition.  Ëngland,  he  says,  'has 
"not  reco(/nù!ed  the  Confederfite  States,  as  an  independent 
"  sovereignty;'  and  he  argues  therefore  that  ail  courts  and  judges 
"  are  bound  to  consider  the  *ancient  state  of  things  as  remaininc 
=<tanaltereè^^  e  e 


Now,  m  his  fourth  and  fifth  propositions,  he  presses  this  proposi-  ' 


^'■^■'i^àfe-I 


ï^     ' 


■  %  &iè4't^(afel  '■'±3%^'.  i 


401 

appljing  thèse  rules  of  law  to  the  commisSon  we  nrod.^^^K: 
our  proDOBition  that  the  Court  is  bound  toTke  notice^St  ^n-^^  f 
the  évidence  relating  to  it,  is  untenable/jmd  op^ed  Z  Lf  • 
Lf  T  'S  '^r^''^^  ^^  A«.erican'c^^^Tecaut  heCs" 

r^t%l.       ^""-Z  ^  T°S°^«  ^^^  «^t«°«e  of  the  Confede! 
rate  States  as  an  mdependent  nationalitv.    Now  Mr  TarfTr  Koc 

m^e  a  veryobvious  Sstake>  submit^gX»;  p^Sns  L 

£t^^!  ^  l^  '"^t'  ^'  ^^'  ^°^**«^  toîerceiveff  Ce  is^ 
différence  between  the  récognition  of  a  Stite  as  an  inde^endl? 
Bovereignfrjr  and  the  récognition  of  a  State  as  a  beCerent  K  th« 
réception  of  Lient.  Young's  commission  as  e^dencl  Svi  fK 
necesBity  of  the  absolute'recognition  of  the  SSrs Ltst 
an  mdependent  sovereignty,  my  learned  friend's  proSon  wouW 
be  correct.     He  is  correct  in  stating  that  England  Wnot  recol 

Z«M  '.W  ^'^^S'"  '^  '^'  Confedemf  States -and  notha^S 
done  so,  Ihat  your  Honor  camiot  80  recognize  them.    iJmitthTt^ 

look  at  ths  commission  a^  an  acfmissike  instrument  of  évidence?  '  Is 
C'CÏl^  *"  "'*''"  ^  commission,  or  to  recognize  if^havin^ 
î^flj"'-  TI"^^  conséquence  from  the  fact  that  EnSmdhJ 
not  recognized  the  seceded  States  as  a  sovereiffnfv  •  «Sf- 
he  does,  that  she  has  recognized  trem  raTefcntrS'  "l 
see  what  the  authorities  sa?  about  that.  I  shT^hL  ot  Z 
fo?  Si  fi'  f  ;Vr^'«^"\."^P°«"^«  '^  *he  fallacy  hTco^Ld^ 
f  Jfir^V""  ^^ifi^t.P'-opo^ition,  tnat  the  effect  of  decla^IÏ 

earned  fhend,  what  he  considéra  to  be  belligerent  riffhtT    T  t^l 
it,  that  he  must  be  of  opinion  that  making  X  is  one  •  t^  L 
camiot  be  made  >mthout  officers  and3ere  th^rilû  ^    ^  ''^ 
Sl'^r  \^n^  ?oldietantM^^^^^^  l^^^K 

States  the  nght  of  commissioning  officers,  we  must  reZSSeS 
commissions  when  tiiey  appear  before  our  Courts  TodE«tW 
we  admit  tjeir  right  to  iÇ>int  an  officer/^  then  to  dedS^  ^ 
évidence  oTthat  appointaient  inadmissible  wonldlL^r  be  r^^ 
Ct  Wn^'^''^"^  mockeiy  of  which  no 'nation  co2VgJtj- 
What  fand  of  recogmtion  of  belligerent  rights  would  it  bfto  iiy 
tJtl  ?°f«^*"*«  States:  you  may  makf  war  upon  the'UniS 

4'*  »PPOÏnt  office™,  commisaioS  ^Z^,T^^Ze^i 
«ttch  a  position  n^ver  could  be  assumed  by  any'  StateTi^oTrl 


m 


M, 


2  1 


_i_Jj 


■I     î 


ri 


K,M!ia!ist^<i^ 


/f 


U  '  ^ 


402 

really  ia  not  a  shadow  o^rground  for  pretending  that  Oreat  Britain 
now  occupies  'it. .  But  lii  addition,  to^  the  âuthority  of  my  l^funed 
friend  hùn^elf,  on  thia  «ubject,  Pw iÙ  àvàil  myself  of  the  "books  ho 
cited,  asVmôans  of  fi&aDy  disposing  of  his  proposition.,   He  cited 
Halleck,  pp.  75,  76,  wbo^ajs  :  "  The  récognition  ofthe  independ- 
ence  and  ^vereignnr  pf  a  revolted  province  by  other  foreign  states 
when  that  independéncffi  is  establisned  in  fàct,  is  therefore  a  qùes 
tion  of  policy  and  pi^^noe  only,  which  each  state  must  detemuné 
for  itself  ;  but  tlûs  détéJiÉaina|ion  nmst  be  made  by  the  sovereiffl^^, 
législative  or  execctive  poweî^f  the  state,  and  not  by  any  sub^r-  /,' 
dmate  authority  or  the  private  judgment  of  individual  subjectei^# 
And  until  the  independence  of  the  new  state  is  recognizèd  by  the 
govemment  of  the  country  of  which  it  was  before  a  part,  oroythe 
foreign  state  where  its  %overeignty  ia  drawn  in  question,  courts  of 
justice  and  private  individuals  are  bound  to  consider  the  ancient 
■  state  of  things  as  remaining  unaltered.     .^ 

This  is  excellent  and  undisputed  law.  But  look  ai  is^ges  73  and 
74,  of  the  same  book,  "  where  General  Halleck  df^ctly  admits 
that  the  lights  of  belligerents,  whidh  neutrals  may  itonçede  io  the 
parties  to  a  civil  war,  include  ajl  rights  necéssarily  incidental  to  a 
state  of  war.  This  is  to  be  foun^  on  the  page  next  but  one  to  the 
page  cited  by  my  learned  friend.  »  So  that  the  very  book,  which 
Mr.  Carter  haa  first  cited,  establishes  the  proposition  that  the 
state  of  belligerency  implies  the  possession  of  ail  rights  neces-^ 
sarily  incidental  to  war:  and  if  it  does,  it  compels  those  who 
recognize  the  belligerency,  alèo  to  recognize  ,the  only  mçde  iti 
which  that  character  can  be  preserved,  and  its  functions  per- 
formed,  namely  the  création  of  armies.  And  as  armies  are 
composed  of  omcers  and  soldiers,  and  the  belligerent  must  hâve 
the  right  of  appointing  officers  ;  that  récognition  rendors  it  neces- 
sary  for  our  Courts  to  recognize  such  appointments  when  made. 

My  learned  friend  also  cited  "  Wheaton,"  page  47,  whose  lan- 
guage  is  almost  identical  with  that  of  Halleck  ;  the  latter  being  in 
tact  copiçd  almost  Verbatim  from  Mr.  Wheaton's  book.  Well,  nobody 
disputes  the  doctrine  there  laid  down.  But  is  Hiat  doc^jie  aj^liei;l,ble 
to  this  case  ?  Mr.  Wheaton's  book  will  itself  an^^  my  question. 
He  says  at  page  40  :  '<  If  the  foreign  state  professés  ne|jitrality,  it 
is  bound  to  allow  impartiaUy,  to  both  belligerent  ^aait&eSf  l^^jthe/ree 
**  exercise  of  those  rights  which  war  givestopuhhc  enemieiàjgiii'nst 
"  each  other  ;  such  a^  the  right  of  blockadè,  ànd  of  oaptairiÀg 
"  contraband  and  eneiny's  property."  Mr.  tÀwrènçe's  note  iipon 
this  passage,  illustrâtes  "^^^  -^-- -r^-  *  i-^    *  - .  ^t     t»  ,  <     .. 

the  strriggles  betwèen  ' 


I  it  by  exam|>Ié8  ^wn  mnb  thë  historv  of 

_^  England  yd  the  Pffaetit  tJiatfed  fwm'^ 

Sp^ltntThdr  cclonîôs  ;  ^[WK^  âncTTîreScè  j  ^^léyiy  fi^f  aie 
exisiang  staté  of  thihgs  in  AiJderica.    (Mr.  Abbott  Hërè  t«aâ  front 


'w3ÎL.,  H.*?*     f'  »V  ^ 


/^ 


\ 


403 


me»ton,  p   48,  ,n  notu,  tho  desoriptioa^veû  of  the  position  of 
Endand  and  France  with  regard  to  Âmerifa.)  ^ 

^r.  tW.— Will  you  read  the  previous  panurraph  ? 

in^-anSrS?!:^!?'^  ("«^J'  %mgTC'th;  ruie  that 
«  lÏÏlî^  nf  '  f  •»•"•««"»*  nghtp,  88  of  â  more  fonwd  acknow- 

ton  in  :^xa8  respecting  a  capture  on  belalf  of  an  unrecoimized 
Mexican  republio  or  state,)  I  admit  that  the  recognihTeTCVf 
beUigerent  ngbte,  or  of  independent  sovereigntj  m™t  be  the  wt  of 
^e  povemment,  not  of  t^e  courte  ;  but,  in  tÛ.  case,  thrBriLh 

n-    L  5^  *^g^ent  la  that  the  récognition  of  thoee  States  aa 

.Me  SSt  tf  1"«^*  ^  fPJT*  ^"^^  0^  officers.    In  th^e 

lase  i^erred  to,  the  Government  had  not  recognised  the  bemirer. 

ency  of  the  State  in  question,  and  dia  not,  cSueX   S 

|mse  ite  nght  to  capture  ;  but  if  the  Gover^mentTd  wo^S 

the  vahditjr  of  a  capture  made  on  its  behalf.  • 

It  is  a  faot  also  which  iUustrates  the  e&ct  of  a  recoenition  of 
belhgerenoy,  that  England  bas  had  çommunicafioà  wir^^ns^ 

"    r  te"TH°«  '^^  .^^^"^f  *  ^f'*^^  Confcd^SeKs 
Mr.  <^«rfor.--I  do  not  dispute,  that  récognition  is  an  act  o£ 

Gorernment  My  proposition  is  that  vour  H^or  is  restrict^  by 
ItJ^'^'t'^i^V^''  ^^^"^  ^J^«  uponyouiBelf  t^concede 
^IZFt^A  ""Y'h  t^™"'^"*  alone%arg4t.  I  refer  to  an 
au^tv  I  did  not  cite  before  ;  pp.  119  and  120  «  Halleck." 

r ,  '  '{•r"""  ^*h  »?™e  <»  the  principle.    It  is  the  Govem 

sovereignty.  But  the  question  Mr.  Abbott  puts  is  this--— Since 
Il  S:r«"  2Î  ?«^T  ^«^  ^«ognized  the  bSigrent XacteTof 
Sl!^S^  *™  P****'  ',  ^^o»».  although  the  recognitirfallsX^^^f  a 
bSSTÏÏ  L'^  ''"^t^  independence,  yet  are  not  the  Courte 

r'^^edTrr  *"'"  *^  *'^  ^•'"^  ^^"*  «"  «'^  ---«-  »^ 

As  a  nawî  S  "*^  ^"'"^  Wheaton  pag^  42,  and  obsenred  : 
nSno-^ï^ir  **?  u*"®'®  ''  *  ^*«*  diferende  between  rocog- 
nmng tiie  belligerent  charactet  of  those  Stat^  anàtheir  senarate 

rïï;i,±rT''/^'^i"  *°°«'"  thelatterisnot^gffiby 
tûé  wvwwgn,  the  Court  oan  not  recognise  it. 


<!ovnti7  ^<>t 
««mot  do  00. 


*J*.-*i87poïftcttyoieii-tKa*ffié1^^ 

harmg  reoogniaed  tbem  a»  an  indépendant  nation/I 


\ 


'i 


m 


il 


'.m 


*    ■vUl 


Il  "  Il 


fe<'|iS%ï*,-i        .5-.,    ^. 


'.t^AK^'VVÏ-'  >  îi. 


■  ni  ii 


11 


,    y 


404, 

Mr.  (7ar<«r.— Then  you  clufflot  recogniae  the  comçùflsion  givoi» 
totheDrÏBoner  Youngby  fluoftftGoveAment. 

S-.  JlWott,— That  ifl  a  non  Mqmlw.  I.  agrée  ^nth  Mp.  Gar-^ 
ter's  proportion  that  the.  power  of  recognitaon  resta  Bolely  with  the 
Bovereijm  power  Df  the  State,  and  that  the  independenée  of  the 
Southero  States  not  having  been  recogmzed,  your  Honor  cannot 
treat  them  as  indepenilent.  But  I  utterly  deny  ihe  correotoess  of 
his  conclusion.  The  Queen's  proclamation  of  May,  1861,  is 
express  in  its  récognition  of  the  beUigerency  of  the  Confederate 
States,  and  in  its  injunctions  for  the  observance  of  a  /tnct  neutra- 
litv  in  the  strife  between  ihem  and  the  Fédérais— and  that,  I  con- 
tend,  is  sufficient  to  render  the  military  conmusMons  of  the  Coi^d- 
erates  receivable  in  évidence  hère.  My  learned  fnend  p-  C^ter 
cites  2  Phillimore,  p.  26,  tothe  effect  that  :-  "  It  is  a^m^crtoifooA- 
ti  doetrine  ofBrituh,  and  North  American,  and  tndeed  of  ail  jun»- 
«ru<fonM,thatitbelong8  exclunvel^to  aov)emment8  to  recogntze  new 
State»  ;  and  that  un^  such  récognition,  either  by  the  govemment 
of  the  conntry  in  whosé  tribunals  a  suit  is  brought,  or  by  the  govem- 
ment to  which  the  new  State  belonged,  court»  of  yu»ttce  arebound 
to  eomider  the  aneient  »tate  of  thing»  as  renîmmng  unaltered.  JSo 
one  dénies  this.  But  Phillimore  makes  exactly  the  same  distmction 
that  Wheaton  dôes  ;  for.  at  page  17,  he  points  out  the  effect  of  the 
observance  of  neutrality  in  a  struggle  between  an  old  and  a  new 
State,  and  states  thafit  has  some  bénéficiai  effect  with  respect  to 
the  nation  which  is  fighting  for  independence.  For,  he  say8,  it 
aUows  impaHially  to  both,  equal  ratikand  character  as  beUigerents. 

Mr  CaHer.—l  say  that  England  has  gone  the  length  of  acknow- 
ledgink  that  a  civU  war  exista  ;  that'sheliaa  declared  her  nettra-, 
UtvtS,  as  a  conséquence,  recognized  the  belhgerent  capacity  and 
beUleerent  riehts  of  the  combatanta.  Therefore,  I  admit  the  cor- 
rectness  of  the  projiosition  he  eriunciates,  but  it  is  the  application 
of  it  I  denv  :  and  I  say,  there  is  a  vast  distinction  between  acknow- 
ledgmg  belUgerent  rights,  and  tiie  rights  and  pnvUeges  resultog 
from  tiie  récognition  of  the  sovereignty  and  mdependence  of  a 
ataté  For  this  is  not  a  war  waged  between  two  sepaiate  jnations 
possessing  distinct  rights  and  sovereignty,  but  a  civil  war  m  a 
ïou^with  which  we  are  on  tejms  df  peace,  and  towards  which 

we  h&ve  treaty  atipulations.  ■•  /.  •    j  v 

Mr.  AbbotL—lt  I  admit  évery  syllable  my  learned  fhend  has 
ioBt  uttered  to  be  true,  which  I  might  M<^  dopa  it  aflfect  the 
iuestionî  mathe8aya,doesnotinany^y^npurporttocon- 
Svert  my  pretension,  that  the  recogmtion  ^f  IWligerent  nghts- 


Xh  he  ictoit»  ha»x)oenrred-involve8  as^jieceBaMycoiyquence 
Jewcognition  of  a  commission  issued  by  one  of  the  belhgerento, 
M  a  leffd  instrument  of  évidence.     To  render  the  distinction  he 


*       *«4  fi 


^Ji.'^niL, 


sM.  «^„t  tlk,  i'È^A*^^ 


405 


iisBion  givett 


[onor  cannot 


iiOB  juBt  drawn  of  any  value,  he  muât  shew  that  nothmg  less  tban 
the  universal  récognition  of  a  State  as  an  independent  sovereignty 
trill  justify  the  issue  of  a  commission.  In  support  of  my  views  on 
this  point  I  wili  refer  to  two  or  three  authora,  but  will  not  permit 
myself  to  dwell  upon  it  at  any  lengUi.  Vattel,  at  page  424,  speak- 
ing  of  the  position  of  parties  in  «  civil  wtrr,  says  : 

"  A  civil  ,war  breaks  the  bands  of  society  and  govemment,  or,  at 
"  least,  suspends  their  force  and  effect  :  it  produces  in  the  nation 
"two  independent  parties,  who  consider  eaqh  otheras  enemies,  and 
"  aoknowledge  ioo  common  Judge.  Those  two  parties,  tberefore, 
"  must  pecessai^ly  be  considered  as  thenceforward  constituting,  at 
"  least  for  a  time,  two  separate  bodies,  two  distinct  societies.  Though 
'Vone  of  the  parties  may  hâve  been  to  blâme  in  breaking  the  unity  of 
''  the  State  and  resisting  the  lawful  authority,  they  are  net  the  less 
*'  divided  in  fact.  Bésides  who  shall  judge  them  ?  who  shall  pro- 
*^  nounce  on  which  side  the  right  or  the  wrong  is  ?  On  earth  tney 
"  hâve  no  common  superior.  They  stand,  therefore,  m />recMe2^  the 
/'  same  predieement  eut  Vwd^MUon»,  who  engage  in  a  contettj  andj 
"  being  unable  to  corne  to  im  agreement,  hâve  reeourse  to  arma." 

I  hâve  hère  also  the  work  of  an  author,  who  bas  by  no  means 
acquired  the  positioti  as  a  légal  w^ter,  which  he  will  undoubtedly, 
at  jome  future  day  attam  ;  but  w&ose  writings  on  certûn  branches 
bf  international  law  hâve  attained  a  wide  spread  réputation.  I  refbr 
to  Mr.  George  Vemon  Harcourt,  who  writes,  under  the  name  of 
"  Historiens.  He  appears  rather  to  lean  towards  the  Fédéral 
side  in  his  sympathies  ;  and  his  views  of  law,  bave  been  in  some 
respects  vigorously  combated,  on  the  ground  that  they  unduly 
incline  in  the  direction  of  his  feelings.  I.  am  sure  my  leamed 
friends  will  aooept  his  opinions  as  deserving  of  the  highest  consid- 
ération, if  not  as  being  absolutely  conclusive  :  and  1^-find  that  he 
attaches  a  very  différent  kind  of  importance  to  the  récognition  of 
belligerent  rights,  from  that  which  my  leamed  fiiends  would  ^ve  it 
At  page  18,  he  says  : 

"  It  is  not  true,  however,  in  the  meanwhile^  that  foreign  powers 
"  are  entirely  without  the  means  of  redress  against  the  persons  owning 
"  the  allegiance  of  the  new  an^  inchoate  govemment.  The  récognition 
^'  of  tiie  insurgents  as  belligerents  gives  them  quite  a  sufficieùt  person- 
*^  ality  to  enable  foreign  powers  to  address  to  uem  remonstrance,  and 
"  to  reçoive  at  their  hands  satisfaction.  A  semi-official  correspond- 
''  enoe  actually  took  place  at  the  be^nning  of  the  strifd  in  America 
^'  between  the  English  Foreign  Office  and  Président  Davis,  on  the 
*'  subjeot  of  the  rules  to  be  observed  towards  ne«itr«d  nations^  in  the 
"  maritime  war  thaf  was  about  to  be  waged.  A  govemment  which 
■**  ia  Hiifficîflntly  inçorporated  to  enjoy  the  rights  o£a  belligareuti 
^'  not  be  suffered  to  évade  the  corrélative  duties  which  are  incum- 
*' bent  upon  it." 


il 


^ 


•-H-t 


i 


>  «1 


r  ; 

'   i 
I 


.«•i 


i-î.l^     Kr 


'^- 


^- 


î^ 


406 

But  though  my  friend,  Mr.  Carter,  submitted  this  objection  to 
Lieut.  Young'g  commission  as  something  new,  it  really  is  not  ^ew 
to  tiie  Courts.  It  is  true  that  it  is  a  new  thing  to  hear  his  propo- 
sition of  law  used,  in  an  attempt  to  ezclude  the  commission  of  a  ^ 
belligerent  from  the  considération  of  the  Courts.  But  the  effect  of 
such  a  commission,  and  its  admissibility  in  évidence  hâve  been  re- 
peatedly  pronounced  upon.  It  is  spoken  of,  for  instance,  in  the 
Chësapeake  case,  to  wiuoh  référence  has  alreadj  been  repeatedly 
made.  If  there  had  been  a  commission  produced  in  that  case,  the  < 
prisoners  would,  no  doubt,  hâve  been  discharged  ;  for  Judge  Bitchie 
repeatedly  and  plainly  speaks  of  such  aspecies  of  autiiority  as 
ample  evidence-of  belligerency .  And  if  sufficient  évidence,  can  it  be 
stûd  that  it  would  not  be  légal  évidence  ?  In  the  Roanoke  case  there 
was  a  commission  produced  by  the  prisoner,  vhereupon  the  Âttomey 
General  immediately  declarod  thQ  case  could  go  no  further,  and  the 

{)ri8oners  were  discharged  by  the  Judge.  And  Earl  Russell,  in  his 
etter  to  Mr.  Adams  on  that  subject,  gave  the  fact  of  the  production 
of  a  Confederate  commission  as  the  sole  reason — and  a  sufficient 
reason—for  sustaining  the  discharge.  It  is  true  that  Earl  Bussell's 
opinion  is  hot'ajudicial  one  ;  but  it  is  of  great  weight  on  thispoiij^t, 
for  my  leamed^mend's  objection  rests  chieây  upon  a  reason  wluch  is 
as  much  one  of  foreigor  policy  as  of  law  ;  and  Earl  Bussell  is  the 
statesman  who  at  the  date  ôf  that  letter  was  at  the  head  of  the 
department  of  Foreign  Affidrs  ;  and  he  wrote  it  as  the  opinion  of  his 
Government  iil  that  behalf.  In  the  case  of  the  Nashville,  in  1861, 
Elarl  Russell  wrote  in  peremptoiy  tenus  to  Mi:.  Adams,  denying 
that  tiie  act  of  the  officers  and  crew  of  the  Nashville  could  be 
treated  as  pirates  for  buming  an  American  vessel  at  sea  ;  and 
quoting  in  his  déniai  Mr.  Adam's  assertion  that  their  act  '*  approzima- 
ted  within  the  définition  of  piracy."  And  the  expressed  reason  of 
that  decifflon  was  that  "  the  Nashville  was  a  Confederate  vessel  of 
war  ;"  and  "  that  her  commander  and  officers  had  commissions  in 
the  Confederate  service."  Even  m  the  Philo<Parsoi^  case,  it  was 
not  denied  that  the  Court  had  a  right  to  reoognize  t}io  commission 
oiÛie  aooused  ;  but  there,  the  prosecution  pcked  ot^  the  offenoe  of 
taking  $20  from  the  steward  of  the  boat  that  w^  assailed,  and 
çhurgmg  the  prisoners  with  that  o&nce,  argued,  that  as  t^y  had 
g(m«  on  boara  a  vessel  and  roUbed  a  steward  os  $20,  tliey  wero 
not  entitied  to  the  rigbts  of  belUgerents.  And  tho  Court  sanctioned 
Ûàa  isolation  oi  an  incident  in  the  clôture  of  the  Philo  Parsons,  from 
the  leading  fact  of  the  c^ture  itsetf  ;  ponouiaomg  tiiat  incident  a 
robbery,  in  the  face  of  the  undoubted  belligertpt  character  of  the 
aot  taken  as  a  whole.  It  is  fortunate  for  the  (i&cen  and  orew  of 
the  NaAvfile  tiiat  they  did  not^#wi<yn  fe^jttriidiciiwrfif^fefr 


Upper  Canada  Judges  ;  for  probabty  there  n^ver  was  a  clôture,  in^ 


DusaiODS  in 


:         407  ' 

ifrhich  private  çroperty  waa  not  taken  by  the  captors.  But  it  was 
uot  pretended  in  the  rhilo  Parsons  case  that  the  commission  coal4 
not  be  received  in  évidence  for  the  defence. 

Xt  appeara  therefore,  that  in  thèse  cafies,  which  are  aU  I  recol- 
lect,  as  having  arisen  since  the  war  broke  out,  the  commission  of 
t^ie  Confederate  States  aa  authority  for  belligerent  actg,  waa  ex- 
pressedly  or  impliedljr  recognized  as  provable.  And  I  wUl  now 
close  thjs  part  of  the  argument  with  a  citation  from  Wheaton's 
Reports,  takèn  from  the  veiy  same  case  cited  by  my  leamed  fnend. 
(3rd  Wheaton,  p.  610,  JJ.  S.  against  Palmer.)  This  is  what  Chief 
Justice  Marshall  says  in  that  case  : 

'*  It  may  be  said  generally  that  if  the  govemment  remains  neu-;. 
'*  tral  and  reco^iises  the  existence  of  a  civil  war,  its  courts  cannot 
"  çonsider  as  criminal  those  acts  of  hostility  which  war  authorizes, 
"  ànd  which  the  new  govemment  may  direct  against  its  enemy. 
*"  **  It  follows  as  a  conséquence  from  this  view  of  Ae  subject,  that 
"  persons  or  vessels  emploved  in  the  service  of  a  selMeclared* 
"  govemment  thus  acknowiedged  to  be  maintmning  its  separate 
"  existence  by  war,  must  be  pemiitted  to  prove  the  fact  of  their 
"  being  actuaUy  emploved  in  such  service  by  the  same  testimony 
"  which  would  be  sufficient  to  prove  that  such  vessel  of  person  was 
"  employed  in  the  service  of  an  acknowledged  state." 

The  State  hère  spoken  of  was  not  an  acknowledged  State.  It  was 
not  even  a  State  acknowledged  by  the  United  States  as  belligerent 
OS  far  as  I  recollect  ;  but  it  was  actually  maintaining  its  position  as 
a  separate  State,  though  without  any  récognition  by  the  United 
$tates,  either  of  its  beUigerent  statm  or  of  its  sovéreignty.  Yet 
Oluéf  Justice  Marshall  déclares  that  a  prisoner,  holding  a  commis- 
sion firom  such  a  Stiate,  must  be  permitted  to  prove  his  commission, 
in  ihe  saine  inanner  as  if  employed  in  the  service  of  an  acknow- 
ledged State.  I  venture  to  submit,  therefore,  that  Uie  novelty  of 
il^.  Carter's  application  of  the  raies  of  làw  he  has  cited,  is  more 
i;emarkable  than  its  soundness  :  and  that  your  Honor  is  bound  to 
r^oeive  Lieut.  Young's  commission'  as  admissible  évidence  in  this 
ç^tter. 

'The  next  point  to  which  I  intend  to  address  myself,  is  one  that 
mj  leamed  friendB  opposite  hâve  laid  much  stress  upon,  though  I 
ttunk  they  hâve  stated  it  in  a  peculiar  manner.  They  assert  that 
i]^6  act  complained  of  is  not  an  act  of  war  at  ail  ;  for,  they  say  it 
iq  ijieither  an  act  of  war  per  m,  nor  i  constructive  act  of  war.  I 
would  like  to  know  what  they  mean  by  an  act  of  war  per  $e.  Is 
wé  arraying  of  thousands  of  men  against  each  oÛier  in  oloody  oon- 
fl|ot  an  act  of  war  j>er  êef  My  leamed  friends  wÙl  probably  say 
ITm.  lïén  I  say  the  O^rdcOTTiottiniiondon,  aH(l"tBé  Macrèad^ 
i^\B  in  New  York  were  acts  of  war  per  $*.    And  perhaps  they 


:| 


■y^ 


'  1 

* 


!tll 


»    •  ii 


1 


•>k  -<  lii 


ïV«.S.tl; 


i^.n  iif 


"!f: 


X  te    iX. 


.  408 

will  also  assert  that  the  shooting  of  a  solitary  maa  in  the  dark  bj 
another  solitary  man,  is  not  an  act  of  war  j?cr  %e.  In  that  case 
unless  it  can  be  shown  by  a  resort  to  argument,  that  it  is  a  "  con- 
structive^'  act  of  war,  the  sentinel  who  àhoots  an  individual  approach- 
ing  his  post  must  be  regarded  as  ar  murderer.  Where  in  the  books  do 
theyfind  this  (^tinotion  bet^eén  an  act  of  war  ocr  m  and  a  construc- 
'tive  act  of  war  ?  What  jprîst  treats  of  it  ?  I  thmk  an]|png  the  piles  of 
volumes  that  hâve  been  displayed  before  your  Honor,  my  leamed 
fnends  might  havç^found  some  stray  sentence  that  would  hâve  sus- 
tained  them.  ^JBut  we  hâve  heard  nothing  of  the  kind.  In  fact,  I 
am  under  thé^  impression  that  my  leamed  fiiends  are  the  first  and 
only  jurisconsults  who  hâve  ever  drawn  that  distinction,  Mr. 
Johnstbn  attempts  to  dispose  of  the  question  by  arguing  as  he 
a|sfays  does,  in  choice  and  plausible  language,  which  gives  a  force  to 
.y^vû&  argument  that  it  doe8  not  intrfnsic^ly  possess — that  no  man  eau 
X  ^mean  to  say  that  the  easing  of  poor  old  Mr.  Breck  of  two  or  three 
/  hundred  dollars  is  an  act  of  war  per  ze.  "  What,"  he  asks,  "  is 
"  the  natural  conséquence  of  robbing  Mr.  Breck  ?  Is  it  that  the 
"  national  power  of  the  United  -States  is  prostrated,  or  in  the 
"  remotest  manner  affected  by  it  ?  The  natural  conséquence  is 
"  that  Mr.  Breck  loses  his  money  ;  but  it  requires  a  great  deal  of 
"  imagination  to  conceive,  and  a  good  deal  of  ingenuity  to  explam, 
"  how  that  fact  tended  to  exhaust  the  national  resources,  or  attack 
"  in  any  manner  the  national  existence."  He  goes  on  in  the  same 
strain  through  half  a  column  of  the  paper  in  which  his  speech 
appears,  and  by  holding  up  the  partic\ilar  act  of  pillaging  Breck 
as  being  a  petty  and  inconsiderable  act,  incapable  of  affecting  the 
resuit  of  the  war,  he  endeavors  to  show  that  it  could  not  be  what  he 
calls  war  jper  ««.  And  my  leamed  friend,  in  support  of  this  kind  of 
argument,  makes  this  cnaracteristic  statement.  He  says  :  "  As 
"  far  as  extemal  appearances  are  concemed,  to  conclude  only  from 
"  what  was  described  to  us  by  the  eye  witnesses  of  this  proceed- 
"  ing  ;  that  it  waa  a  warlike  opération  may,  I  think,  be  falrly  said 
"  tol)e  imp(»sible'.  If  common  sensé  were  not  quite  a  sufficient 
"  guide,  by-itself,  to  conduct  us  to  this  conclusion,  the  authorities 
"  already  cited  by  my  leamed  friend  Mr.  Bethune  are  upon  this 
"  point  conclusive.  Vattel,  Martin^  Manning,  Poison,  Woolsey, 
Kent,  Wheaton,  and  Halleck,  concurring,  as  Âey  hâve  been 
shown  to  do,  upon  such  a  point  as  this,  may  safely  be  deemed  of 
sufficient  authority  tb  guide  us  to  the  décision  of  what  is,  and 
"  what  is  not  considered  upon  gênerai  principlea  to  be  an  act  of 
"  war."  Well,  now,  ar  it  happens,  no  one  of  those  authora  bas 
^d,  tfiat  the  pilla^  and  sack  of  a  towp  is  not  an  act  ôf  war.  No 
oné  of  them  haa  drawn~^é  distinction  between  an  act  of  war  jwr 
M  and  a  constructive  act  of  war.    Not  one  of  the  citations  quoted 


(( 


« 


.  ^«/.    ù^^è^'idÉi^^  : 


%- 


1  . 

4    11 


.409 

by  Mr.  Bethune,  on  whose  labor  and  leaming  Mr.  Johnston  pro- 
fesses to  rely,  directly  or  indirectly  lays  down  any  distinction 
between  an  act  of  war  per  8e  and  a  CQnstructive  act  of  war  ;  nôr 
do  any  of  them  treat  at  ail  upon  «  such  ar  point,"  as  my  learned 
fnend  is  urgmg,  when  he  poure  out  their  names  so  fluently.  War 
does  not  consist  merely  nor  eyen  mainly  of  battles  between  great 
anmes,  although  the  modem  tendency  is  to  confine  it  to  them  as 
much  as  possible.  On  the  contrary,  it  is  composed  of  innumerable 
minor  acte  of  hostility,  in  which,  unhappily,  injuries  to  individuals 
and  to  privateproperly  are  ôf  momentary  occurrence.  My  learned 
friend's  remarks,  as  applied  to  Breck,  might,  therefore,  with  equal 
propnety  and  equal  justice,  be  used  with  respect  to  incidente  in 
this  and  m  every  other  war,  which  occur  hourly— which  are  occur- 
ing  while  I  speak.  When  a  cottage  in  the  Shenandoah  valley  was 
bumed,  was  «  the  national  power  "  of  the  Confederates  «  pros- 
trated  "  by  so  doing  ?  When  one  of  the,  piUagers  of  Darien 
camed  off  a  table  on  his  head  and  a  pair  of  chickens  in  his  hand, 
,  did  those  acte  "  exhaust  the  national  resources,  or  attack  in  any 
^manner  the  national  existence?"  Such  pueriUties  as  thèse  appear 
Smart,  but  they  are  not  argument,  and  do  not  even  resemble  argu- 
ment. They  are  the  more^  excusable  in  my  learned  friend,  how- 
ever,  as  they  constitute  qm'te  as  large  an  élément  in  the  Burley 
judgment  as  they  do  in  his  address  ;  witii  this  différence  that  he 
bas  greatly  the  advantage  in  the  mode  in  which  he  has  placed 
them  before  your  Honor. 

What  the  authors,  whoge  names  Mr.  Johnson  runs  over  so  glibly, 
do  contain,  however,  is  a  clear  and  conclusive  statement  of  what 
the  nghte  of  nations  ai  war  with  each  other  really  are.  And  they 
certainly  do  lay  down,  as  an  exception  to  the  gênerai  rule  already 
sufficiently  established  bv  our  authorities,  that  ail  subjecte  of 
each  belhgerent  are  made  enemies  by  war,  and  may  kill  each 
other  and  despoil  each  other  of  their  property;  that  the  war 
flhall  not  be  waged  with  "any  more  violence  or  cruelty  than  is 
Mcessary  to  the  end  which  the  nations  at  war  mtend  to  gain. 
That  iB'the  rule  which  nations  in  modem  warfare  geneMJly  volun- 
tarily  observe.  But  this  exceptional  raie  is  not  only  iteelf  subject 
toa  great  many  exceptions,  but  it  is  one  not  enforcible  in  any 
wav,  except  bv  reprisais  or  retaliation. 

Moreover,  the  ténor  of  every  citation  made  from  the  other  side,  as 
to  the  mode  in  which  war  ought  to  he  conducted,  is,  that  both  par- 
ties are  entitled  to  carry  on  war,  in  such  manner  as  they  may  think 
urODer,  without  responsibility  to  any  one;  and  especially  it  is 

or  décide  whether  one  mode  or  another  is  proper  or  improper;  or 
«an  punish  in  any  manner  or  #ay,  any  breach  of  what  they  may 


I" 


■^  i. 


iV  \ 


i      <l 


,"   w'ii     fc/fa-ilw^*^ 


'\M 


f^n 


.  ^.  410 

consider  to  be  the  ruies  according  to  which  war  oudit  to  be  con- 
ducted.  In  every  author,  I  say,  there  la  to  be  found  the  assertion 
that  there  is  no  absoluto  nor  enforcible  ruie  in  such  matters  ;  but 
that  thé  will  of  the  nation  carrying  on  the  war,  alone  can  décide  in 
the  last  resort. 

Judge  SrhUh. — It  is  a  raat^  ôf  conscience. 

Mr.  Aibott. — A  more  matter  of  conscience.  The  différence  in 
this  resfject  between  what  are  called  the  laws  of  \ïar  and  municipal 
law,  is  similar  to  the  distinction  inade  bj  Pothier,  between  the /or 
intérieure  and  the  for  extérieure. 

Judge  Smith. — In  order  to  bring  that  point  to  a  practical  test, — 
if  it  be  asserted  that  the  lawé  of  war,  or  the  laws  of  nations  hâve 
been  violated,  what  tribunal  can  décide  whether  they^have  been 
or  not  ? 

Mr.  Abbott. — That  is  the  poibt. 

Mr.  Carter. — I  do  not  contend  that  when  once  an  act  is  estab- 
lished  to  be  an  act  of  war,  the  Court  can  take  into  considération  ite 
nature,  or  character,  or>deal  with  the  authors  of  it.  But  that  on 
the  contrary,  when  it  is  admitted  to  be  an  a|Ct  of  war,  it  is  beyond 
the  control  of  any  municipal  court.  I  contend,  however,  that  the 
circumstances  surrounding  this  case  show  it  was  no  act  of  war  at  ail. 

Judge  iSmith. — We  are  to  détermine,  m  the  flrst  instance,  whether 
the  act  complained  of  is  an  act  of  war  or  not.  If  it  be,  what  tribu- 
nal can  try  its  propriety  ? 

Mr.  Carter. — I  say  that  this  offence  is  not'only  a  breachof  civil 
and  municipal  law,  but  a  breach  of  international  law.  It  involves 
both.  In  tne  first  place  vou  can  not  regard  it  as  an  act  of  war^  as 
the  prisoners  previously  lived  hère,  on  neutral  territory. 

Judge/Smith. — You  must  not  confound  propositions. .  If  the  act 
is  done  *rith  authority — in  obédience  to  orders  given  on  behalf  of 
a.  State  (recognized  by  our  Government,  so  far  as  carrying  on  the 
war  is  cèucemed,  and  yet  is  alleaed  to  be  in  violation  of  the  rules 
of  w^r  ;  who  is  to  try  that  question  ?  To  say  that  il;  is  to  be  tried 
in  any  neutral  oountry  is  absurd. 

Mr-  C(wt«r. — What  I  contend  for  is,  that  there  is  no'authority 
proved. 

Judgè  Smith.— -Theit  is  again  another  point.  That  is  the  point 
I  want  to  bring  you  to. 

Mr-  Cat^.—Î  say  that  if  the  Confederate  States  were  an  in- 
dçpendeût  nation,  they  could  not  ^ve  authority  to  those  parties  to 
ao^  aa  they  did  at  St.  Albans. 

•   Judge  Smith. — The  real  diffiçt^ty  pftbe  case  is  this,  has  tiiere 
-^en,  Âown  Jg-haae.  been  any  compétent 


Ihëiw  men  acted  f~ 

Mr.  JDevliti, — Was  there  a  oommi^sion  ?  or  has  the  aot  been 
avowed  î  ,,  / 


/ 


411 


Judge  Sm%th.—ïîyZA  thèse  men  allège,  they  acted  in  obédience 
U^  çrders  issued  by  compétent  authority,  and  only  did  what,  in  the 
pxecution  of  their  duty  as  soldiere,  they  were  bound  by  their  alle- 
©ance^tp  do,  then  the  simple  question  is,  hâve  they  proved  such 

^®"!i       f  *^®y  ^''^  "°^'  *^®"  ^  °*^®^  considérations  fall  to  the 
giround,  and  they  stand  hère  as  ordinary  criminals.       » 

/  4fr.  Bethum  conunenced  to  explain  what  he  meant  by  an  act  of 
ifaxper  $e. 

Judge  Smith. — ^Neutrals  cannot  investigate  the  character  of  an 

act  of  war.    When  nations  are  at  war  ttiey  act  as  they  please 

,  tocards  each  other  ;  and  a  neutral  has  no  power  to  say  this  is  an 

act  of  war,  or  is  no  àct  pf  war.    The  assumption  of  the  contrary 

dpctme  Yi^ould  lead  us  into  a  labyrinth  of  difficulties. 

Mr.  Abbott.— THÙB  discussion  has  brought  the  question  raised 

rçspecting  acts  of  war,  to  an  intelligible  pomt  ;  and  the  view  of  it 

jn^  stated  by  your  Honor  is  the  one  I  hâve  been  ail  along  con- 

teftding  for.    With  regard  to  the  impression  çonveyed  to  me-by  what 

ypur  Honor  has  just  said,  as  to  proof  of  express  authority  being 

requisite  to  enable  you  to  regard  theprîsoners'  acts  as  hostile  acts, 

I  beg  respectfully  to  subnut  tiiat  I  thinjc  the  authorities  would 

n^taiu  a  wider  view  of  the  functions  of  a  commissioned  officer.    It 

wpotof  much  importance  to  my  case  which  should  be  adopted; 

m  l  consider  the  express  authorit;^  fully  proved.    But  I  (to  not 

lyiph  your  Ho^or  to  thmk  that  I  admit  that  an  officer,  with  soldiers 

u^r  bis  command,  may  not  sack  and  bum  an  enemy's  town  at 

tojr  pomt  and  at  any  tlme  while  war  continues,    I  contend  that  if 

he  h^  never  had  any  instructions  from  Mr.  Clay,  the  production 

^   of  Mr.  Yoùng's  commission  as  an  oflScer,  and  the  pïoof  that  he 

t^^  aparty  ol  twenty  soldiers  acting  undey  his  orders;  the  act 

cJl^tfged  being  that  of  attackîng,  and,  as  far  as  they  were  able, 

suc^g  and  buming  a  towp  in  Vermont  ;  would  bave  been  sufficient 

t9  defeat  this  demand.    I  sày  that  the  &ct  of  himself  being  an 

^  9i^er,  and  his  command  being  soldiers  of  one  of  the  belligerents, 

■^  a^jing  on  their  behalf,  against  the  other  belligerent,  and  in  their 

topcitory,  is  sufficient,  without  any  instructions,  whatever  from  his 

.Qoyenment,  e^tirely  to  deprive  the  municipal  law  of  Vermont  of 

al(  power  over  him,  and  entirely  to  divest  t£e  a«t  he  did  of  the 

ohftT^ter  my  leaif^ic4  friendâ  on  the  other  sidewish  tp  attach  to  it. 

Jl  ,cpuld  never  be  cpntended  under  such  circumstances  that  the 

.  fifi^  they  cc^mitted  werë  vere  viclfttions  of  âo  mumcipal  law  of 

-  m  Sta,te  pf  Yermpp*.    BtutI  dp  npt  intend  tp  argue  this  ppint 

%^fir,  (M  I  bpi  qwte  w^ed  pur  ppsitipn,  as  reg^urds  it,  is  faHj 


Tpreiipra,  QieiQ,.J|)  the  anthpiitiea  of  my  leamed  fiie^ds,  and  t)ie 
mipdplea  they  attempt  tp  4r<^wfirpi]|i  tiiem,  I  wiah  pnce  fcir  fJl  to 


; 


(1  ï  Y 


412 


say,  that  I  contend  that  the  stâiement  by  the  learned  authors  pited, 
that  certain  l^ostile  acts  are  unlawful,  oonveys  nothing  more  than 
that  tiiey  are  not  in  accordance  with  the  course  of  action  whioh 
civilized  nations  tteually  follow  in  war.  As  I  bave  repeatedly  re- 
marked,  none  of  those  authorities  class  acts,  such  as  the  présent, 
among  whal  are  termed  unlawftd  acts  ;  but  if  they  did,  the  fact  of 
their  being  unlawi^l,  in  the  senqe  in  which  they  use  th^  word,  would 
not  bring  them  witbjn  the  jurisdiction  of  the  ordinary.  municipal' 
tribnnals*.  And  another  lin|  of  argument  and  authority  they  hare 
followed,  is  quitQ  aa  easily  answered.  Citing  from  numerqus  books 
in  support  of  their  view,  they  insist  that  it  is  unlaiwfîil  for  persons, 
thdugh  belon^g  to  a  belligerent  nation,to  commit  déprédations  witUa 
their  enemy's  lineS  in  disguise  ;  and  that  such  maraudera  are  liable 
to  be  treated  with  extrême  se^erity.  Ail  this  is  true  enough. 
Even  belligerents,  if  they  are  acting  within  the  enemy's  Unes  in 
disguise,  are  liable  to  be  shot  or  ,^wged  ;  that  is,  they  are 
amenable  to  the  laws  of  war,  and  are  liable^  to  be  tried  by  court 
martial  as  guérillas,  spies,  and^  the  like^  and  executed  just  as  Beall 
was.  Or,  if  the  offended  belligerent  chooses,  he  aay,  shoot  w 
hang  them  without  trial.  But  none  of  those  authorities  show  that  ^ 
guérilla  or  spy  is  to  be  tried  as  an  offender  agunst  the  ordinatr 
municipal  law^  or  that  he  is  amenable  to  it  in  any  way."  Beall  s 
case  is  an  instance  'bî  the  constiniction  put  upon  thèse  authorities 
by  the  United  Staiies  themselves.  He  was  charged  with  several 
acts,  whfch)  under  ordinary  circumstances,  wôuld  hâve  sustsdned 
indictments  before  the  regalar  courts,  but  there  was  no  pretence 
of  his  being  Justiciable  by  those  courts.  He  was  tried  by  a  mili- 
tary  court  for  thèse  véry  acts,  as  violations  of  the  laws  of  war,  and 
ie  was  found  guilty  accordingly.  And  when  my  leamed  friends 
cite  the  Burley  case,  they  should  remember  that  the  chief  offence 
charged  against  Captairr  Beall,  as  a  violation  of  the  laws  of  war, 
for  which  he  was  tried  by  a  tribunal  organized  under  the  laws  of 
war,  was  the  very  act  which  Upper  Canada  Judges  held  to  hâve  had 
notlung  to  do  with  war.  Either  Beall  was  illegally  condemned  and 
«xecnted,  therefore,  or  Burley  was  illegally  extradited.  I  shall 
«entent  myself  at  présent  with  saying  on  this  point  that  I  am  pre- 
pared  to  admit  that  the  présence  of  Toung  in  the  enemy's  country, 
with  a  party  of  soldiers  in  civilians'  dress,  would  bave  jendered  hun 
and  his  party  liable  by  the  laws  of  war,  if  captured,.t4A>e  treated  as 
spies  or  guérillas,  and  hanged  or  shot  on  me  spot  ;  and  I  siibmit 
iihat  1^  vérification  of  the  auuiorities  cited  on  this  point  yn!H  show  tiiat 
they  carry  my  leamed  friends  ho  fiurther.  But  that  they  in  no 
instance  estîtblish  that  persons  sa  liable  to  puniBhïnent,are  amenable 
"io  Âe  Courîa,  and  consequenily  coûIdDé  extradited,  ùndèr  the  , 
Ashburton  treaty.  ^1  should  exceptf  howevvr,  the  letter  of  Dr. 


(.•>Aï 


fi 


413 


Si 


ideher  to  Judge  AdYOcate  Bolles,  written  on  the  5th  of  Februarj 
Uutt  for  the  Beall  case  and.  for  this  one,  and  actually  read  to  the 
Court  by  the  Judgâ(  Advoéate,  as  auùiority  in  the  Beall  case 
(p.  85)  ;  and  now  read  by  my  leamed  friends  as  an  authority 
hère.  It  is  a  new  feature  in  the  argument  of  a  case  to  hear  a 
letter  from  the  Plaintiff's  Counsel,  giviog  his  opinion  on  a  case 
before  a  Court,  read  to  that  Court  as  an  authoritative  exposition  of 
the  law  of  that  case.  And  it  js  more  extraordinary  still  to  hear 
a  letter  ^m  an  obscure  person  in  the  United  States,  upon  a  ques- 
tion ol^  public  an^  international  law  arising  between  that  Çrovem- 
ment  and  tLe  Government  of  Great  Britain,  quoted  as  solving  that 
question  ;  notwithstanding  that  the  writer,  in  endeavoring  to  .«stab- 
lish  his  position,  diaracterizes  the  doctrine  approved  of  in  antffî- 
cial  déclaration  of  Ëarl  Hussell  as  the  organ  of  the  British  Govern- 
ment, as  shewing  such  ".inisolence,  absurdity,  aïid  reckless  disregard 
of  honor"  as  to  "fairlj  stagger"  a  jurist  or' a  student  of  his- 
tory.''''  My  leamed  friend,  Mr.  Johnson,  found  à,  Pickwickian  in- 
terprétation for  the  term  ^'insolence,"  but  he  wisely  abstained 
from  seeking  to  translate  "absurdity  and  reckless  disregard  of 
honor."  His  position,  vhile  he  argued  that  "insolent"  meant 
"  unusual,"  was  sufficientiy  pitiable,  yrithout  being  piolpnged  during 
the  performance  of  a  sinular  opération  upon  Mr.  lieber's  other 
polite  expressions.  I  shall  take  the  liberty,  therefore,  ofpaying 
no  further  attention  to  this,  the  soUtary  favorable  authority  Which 
my  learned  friends  havei)een  able  to  find,  or  their  clients  to  manu- 
faotuire,  for  the  purposes  of  this  case.  o 

What  yotir  Uonor  has  said  on  the  proposition  of  my  leamed 
friends  as  to  acts  of  vrar,  relieves  me  to  some  extent  from  the  task 
I  had  imposed  upon  myself,  of  following  seriatim  the  authorities 
oited  on  that  'subject  by  the  other  side.  But  I  vrill  glance  at 
two  or  three  of  them.'^  Mr.  Devlin  cited,  chiefly,  from  Vattel  ;  aùd 
Mr.  Bethune,  also,  made  a  very  extensive  use  of  his  work.  I  think 
therefore  that  I  shall  merely  refer  your  Honor  to  the  citations  fur- 
nished  in  support  ^f  our  7th,  8th,  9th,  and  lOth  propositions  ;  and 
then  content  myaelf  with  taking  tiie  quotations  made  by  my  leamed 
friends  from  Vattel,  and  sho^ring  how  far  my  idea,  with  reprd  to 
ihem,  is  borne  out.  My  leamed  ^end  comofienced  by  a  citation 
from  Vattel  at  page  8ôl,  and  Mr.  Bethune  by  another  from  page 
847.  Thèse  are  the  very  first  quota,tions  they  made,  and  it  is 
remarkable  how  they  completely  deprive  my  leamed  friends'  argu- 
ments of  ail  force  in  law,  leaving  to  it,  h^wever,  its  full  value  as  an 
exposition  of  what  war  ought  to  be.    At  {Age  847,  afrer  laying 


c 


Ml 


b^gerent  haa  a  ^ght  to  employall  the  means which  are  neoessary 
for  its  attainmenti  Mr.  Vattel  oontiuues  : 


414 


'0, 


"The  lawfhlness  of  the  end  does  not  ^ve  us  a  reai  rîght  to  any- 
"  tWng  furtjier  than  barely  the  means  necessary  for  attaimnent;  of 
"  this  end.  Whatever  we  do  beyond  that,  is  reprobated  by  the 
*'  \m  of  natare,  is  faulty  and  condenmable  at  the  tribunal  of  cm- 
"  tûîenee." 

And  in  the  very  liext  paragraph,  assuntmg  as  an  axiom  that 
"  it  belongg  to  each  nation  to  judge  of  what  hor  own  particular 
"  situation  authorises  her  to  do,"   he  proceeds  to  sho^  ^at  a 
sorerei^  who  onnecessarily  adopta  extrême  measores  and  carnes 
on  the  war  with  unnecesàaty  sererity,  "  is  not  innocent  before  OÔd 
and  his  own  conscience."    Thèse  few  Unes  embody  the  prindple, 
the  dttelôpment'ofjrhich  is  the  sabject  of  the  8th  chapter  of  Mr. 
Vattel's  tlurd  book.''   It  is  the  "  tribunal  of  conscience  '*  to  wlâch 
a  (îoyemment  is  amenable,  when  it  carnes  on  a  war  in  a  maniier 
inconsistent  with  the  humane  rùles  which  are  usoally  observed  in- 
modem  times.    It  is  before  "  God  and  his  bwn  conscience  "  tiiat 
he  will  be  held  culpable,  not  before  any  human  Court  or  Judge. 
But  there  are  numèrous  ciroumstances  mehtibnèd  by  Mr.  Vattel  in 
the  veiy  pages  my  ïeamed  friends  hâve  cited,  where  ail  the  humane 
raies  they  approve  of  so  highly,  may  be  violated,  without  incurring 
even  the  teprobation  of  the  conscience, — such  are  those  things  which 
are  donc  by  way  of  retaliation  and  reprisai. — ^And  thèse  were  the  pro- 
fessed  objectB  of  ïbe  6t.  Albans  raid,  and  constitute  the  most  ob- 
vions of  thoBç  which  can  be  supposed  to  hâve  act^îated  the  Confeder- 
ate  Govemihént  in  devising  it.     Then,  if  Mr.  Vattel's  doctrine  cited 
by  my  Ïeamed  friends  be  correct,  it  is  only  the  Confederate  Gov- 
emment  to  whom  "  it  belongs  to  judge  what  her  own  particular 
"  situation  reqxrires  her  to  do  ;"  and  if  she  judges  wmong  and  per- 
pétrâtes acts  which  are  not  justified  by  the  ciroumstances,  U  is 
only  "  to  God  and  to  their  own  consciences  "  that  her  rulers  are 
réHbonsible. 

The  remwnder  of  the  same  chApter  has  been  cited  at  différent 
points,  where  varions  kinds  of  injunes  to  an  ènemy  are  declai«d  to 
be  unlawful.  I  hâve  already  shown  the  eflbct  of  thtt  kind  oî  un- 
lawfùliieBs,  but  it  may  be  useftd  to  puriue  the  argument  a  little 
forther.  Mr.  Bévliû  Srea^  to  us  from  )[>ége  861,  that  women, 
childwta,  and  feeble  bld  iaen  do  not  comè  under  t^e  denoinination 
of  enéyies.  And  ihat  solcUérs  àhould  not  hartti  thbsé  clàases^  taor 
peftàatotJs  and  btbéirs,  S^ho  do  not  carry  «rtns.  But  hè  «avs  in  èèc- 
-tiool46:  •'  ^ 

»  But  aOl  'flioiB  èHéMilà  thuè  èùMùéd  or  (fisà^éd,  whbià  tiie 
priAç^^  of  httiÉawity  oblige  him  tot^^j— ^aÛ  tfcôse  tërtWÉ*e- 
lomàuzio  a»  otoDontè  pài^  f eve&^e  trottieû  *nd  élmStn 
énd  iààlro  ùriÉAier*,  *  *  •  •  'at  «Wséttt,  1 


«  ♦  *  *,  women  and  childién  We  étiTetéd  fo  ét^j^ma^  ^bMA^, 


t 


.li. 


'5^,1.1  ffi 


Ui 


415 


L 


**  and  allô wed ^permission  to  withdraw  wherevfer  they  pleaae.  But 
*'  this  motierçUion^tJiùpolitenesSfthoughuncloudbte^t/ commendable, 
"  18  flot  in  xtu^  gbêolutely  obligcitory  ;  and  if  a  genfh:^l  thinks  fit  to 
"  supersede  it^  he  çannot  be  justly  accused  of  violating  the  laws  of 
"  war.  He  ifl  at  liberty  to  adopt  such  measures,  in  tbis  respect,  as 
«<  he  thinks  qsost  conducive  to  tne  success  pf  bis  affiiirè." 

So  that,  if  the  enumeration  of  non  belligerents,  aa  persons  wbom 
it  is  unlWful  in  ^^  to  injure,  had  any  bearing  on  this  caise,  ^hich 
it  bas  not;  the  context,  in  the  very  page  from  which  the  rule  is 
drawn,  but  trbich  my  leaméd  friend  omitted  to  read,  points  out 
tb&t  tMs  u&laivfiilness  is  not  absolùte  ;  it  is  subject  to  no  «Tudge 
bere  on  oarth,  and  is  punishable  by  no  tribunal. 

But  let  us  look  a  little  closer  at  this"  argument  of  my 
leamed  friends,  and  apply'  it  to  this  case.  Admiting  for  a 
moment  that  the  St.  Albans  attack  falls  within  the  description 
of  unlawful  acts  of  war,  would  that  fact  bring  the  yisoners 
within  the  treaty?  The  killing  of  J^jsoners  who  bave  surren- 
dered  we  are  told  is  tmlawful.i^  But  vhat  is  the  conséquence 
of  putting .  a  prisoner  to  deàth  after  his  surrendef  ?  Is  the 
peraon  who  kills  bim  guilt?  of  murder  ?  Can  he  be  denmnded  and 
èxi^adited,  if  he  is  K>una  in  a  friendly  country  with  wbom  his 
enëmy  h&â  such  treaty  as  ours  ?  Take  thé  case  of  Gen.  Morgaii, 
the  ^dlant  Confederate  cavalry  leader,  who  was  shot  dead  in  a 
garden  by  a  partv  of  Fédéral  soldiers  while  unarmed,  and  after  he 
had  surrendered  himself  ;  was  stripped  of  his  clothing  and  his  corpse 
flun^  into  the  nearest  ditch.  According  to  Yattel,  ànd  to  the 
hundreds  of  other  writers  to  wbom  my  leamed  "friends  hâve 
referred  ob  this  very  point,  thèse  were  unlàw^  acts  justifiable  on 
no  grotlnds  wh&tever;  and  Heavenforbid  that  I  should  dispute 
such  a  Ipropbsition.  Butwould  tbe  murderoiis  rufSan'wbo  killed 
^lim  be  liàble  to  be  tried  by  any  municipal  tribunal  for  that  crime  ? 
Would  t^e  sordid  outcasts  whb  tore  the  gahnents  from  the  yet  palpi- 
tating  corpse,  be  held  guilty  before  ttie  Courts,  of  an  ordinary  tneft  ? 
To  hold  that  they  womd  lie,  wotild  be  in  one  sénse  as  shôcking  to 
.the  o^i^ons  of  the  civilized  world,  as  to  àpprove  of  the  infâmoùs 
ûtltrAges  which  I  quote  in  illustration  of  my  argument.  *  > 

Mr.  Deviin  tt^ain  cites  nftgès  857  éxÀ  859  of  Yattel  ;  but  foi;  wha^ 
pùrtKJSô  ?  ,Tô  prore  that  an  eneiny  may  nôt  làwfuÙ^  be  treàcheif- 
otlsr^  [fljsâ^iiii^ied  or  ^iSoAed  !  We  dôn't  irequire  b<)ok0  ,^ 
bô .  tpt^A.  to  tis  to  pjihôvia  4ùch  propositions.  'm'S'j,  éanqit  i  Be 
tiie^  &fé  q[tdte  as  irrélevant  as  they  are;  ti^^e. 
it   within   Ôùr   <>wn  titne    j^ves   ûs  instanôes  ,of 


»  liras.  M^<^^ ,  i^  ]E^^^d  ;  inA  wé  kiiow  how  Qiê,  ^ro- 
tk>fiU  yto  re«elt«d.    âiâûrdly  ^e  âaight  hâve  béen  sjpdrâd  (fiése 


âispëWd  ;  biit  t) 


tii 


-El 


■"■:] 


»   .    Il 


fi 


t 

1  IN    iî 


i         ,^1 


U^>% 


-.>* 


416 


quotations,  as  well  as  that  which  follows  them  at  pa^e  362.  A 
moral  exhortation  is  very  good  in  its  place  ;  but  it  is  not  by  the 
views  of  philanthropists  as  to  what  the  world  ought  to  be,  that  we 
are  to  be  govemed  m  administering  the  law.  Mr.  Devlin  read  us 
haJf  of  page  862,  but  if  he  had  also  read  the  first  two  Unes  of  it,  I 
think  he  would  hâve  found  it  unnecessarj  to  proceed.  Mr.  Vattel 
préfaces  the  portion  Mr.  Devlin  read,  by  saying,  "  I  cannot  con\ 
"  clude  this  subject  of  yih&t  we  hâve  a  right  to  do  against  the  peraon 
"  of  the  enemy,  without  speaking  a  few  words  conceming  the  dis- 
"  positions  we  ought  to  préserve  towards  him."  This  really  covers 
the  whole  ground.  Our  authorities  will  show  your  Honor  what 
belligerents  hâve  a  right  to  do.  My  leamed  fnends  attempt  to 
limit  that  right  to  what  Mr.  Vattel  thinks  they  ought  to  do.  I, 
imarine  there  can  be  little  doubt  which  rule  your  Honor  must 
follow.  ;  ,  •'  ^ 

In  the  next  chapter  of  Mr.  Vattel*s  great  work,  which  treats  of 
the  rights  of  war  with  regard  to  /things  belonging  to  the  enemy, 
from  which  Mr.  Betihiune  has  largely  cited,  the  same  distinction  is 
to  be  found  pervading  the  whole  discussion.  The  right  to  seize 
upon  and  appropriate  to  ourselves  the  jproperty  of  our  enemy  is 
stated  in  dbect  terms  (pp.  364,  366.)  But  the  duty  of  e^iiercising 
this  right  with  modération  and  humani^  is  Btrongly  urgéickupon 
belligerents  ;  and  upon  thèse  statements  of  duty  my  leamed  friends 
build  up  the  fallacious  proposision,  that  becàiise  they  thihk  the  pil- 
lage of  St.  Albans  does  not  square  with  Mr.  Vattel's  view  of  pro- 
priety,  therefore  it  is  unlawful  ;  an.d,  therefore,  also,  the  prisoners 
are  taken  out  of  the  immunity  which  the  laws  of  jrar  afford  them  : 
and  must  be  extradited.  But  in  reality,  the  pillage  of  an  enemy  is 
nowhere  declared  to  be  uiJawful  ;  but,  on  the  contrary,  is  referred 
to  in  every  page  of  chapter  9  as  an  undoubted  right.  Aulfer. 
Vattel  mentions,  also,  in  what  way  pillage  may  be  fully  justified — 
nj^ely,  as  retaliation  &nd  reprisais  ;  and  he  states  it  to  be  entirely 
in  the  discrétion  of  the  authorities  of  eftch  belligerent  to  décide  as- 
to  the  nature  and  extent  of  such  retaliatory  measures.  I  proposed 
to  place  beforejrour  Qonor  évidence,  provmg  that  the  modem  which 
this  war  has  been  carried  on  by  the  Federtus  was  such  asto  afford 
the  fullest  justification  of  the  retaliatorV  raid  now  nnder  considér- 
ation, but  your  Honor  rules  it  out,  and  I  tnink  rightly.  For  I  hold 
that  ^  the  act  be  done  with  the  authority,  express  or  nnpiied,  of  the 
Confederate  States,  its  propiiety  is  a  question  beyoâd  your  juris- 
/d^otion.  But  ample  évidence  of  it  is  neverthelesj  not  wanting  in 
those  records  of  daily  eVents  which  constitute  tilie  history  of  this* 
The  extraot  I  rèad  yesterday  from  the  "  Rébellion  Record," 


war. 


^i^wt4iiôiMhe4E^ted  States  wi^ge^  war.  Bat  tiwrriuw  been 
thing  more  \hen  this.    Tbe  Fédéral  Le^slature  bas  passed  an  aot, 


M 


.1^1  ik    vi«tÉrta-a       ^    <      ir,/'^V»'-   ^1  - -î,— j  ■Alé^:-itfy.ii.j, 


417 

'"  '       ,  ■ 

Vjrhich  the  entire  property  of  the  subjects  of  the  Cfonfederate 
States  bas  been  confiscated.    I  shall  read  from  the  speech  of  Mr 
-  €nttenden  a  few  sentencss  vhich  admirably  characteSe  this  most 
^«xtraordinary  pièce  of  législation:  »  luwt  . 

"  You  propose  the  confiscation  of  ail  the  propertj  of  rebels,  their 

Z  ^^f'I  T^  ""Y^^'    .^**  ^  *«  number  of ^ople  who  woiud  b^ 
^  mcluded  m  the  proscnption?  whom  would  that  include  ?  AU  who    ' 
«  T®ir^?  taxes  ail  who  bave  made  contributions  to  support  the 

rebeUion^?  aU^who  bave  taken  up  arma,  or  aU  who  have^ven 
1  Tl  n'*,r'"î^^*<'  those  who  hâve  taken.up  ânns  ii^  support  of  . 
-  tfxe  rébellion  ?  How  manj  would  that  leave  î'^The  exception  wUr 

be  but  very  few,  -rfyou  consider  who  are  theprincipalsf  and  X 

the  aidera  and  a^ttorS  of  this  rébellion,    ifere  aîeten  States!  . 

Îî-M  ^  C  ^?^,^.«î°fi««ata««  you  proscribe  man,  woman,  and 

hke  it.    Such  a  proscription  was  never  before  issued  by  an?.. 
human  authonty.    No  plague,  no  pestilence,  which  ever  de- 

"  wodd  »  "^''  "  ®''®''  "^"^^^  "'''^  "^**^®^  *»  *^ 

^.S"  *^l* '° ^"''  Î^^Jore. (^mdenying  the  right  of  one  beffigeront 
toseize  the  propertv  of  another,  the  t 'nited  States.as  Mr.  Crittenden 
shows,  bave  actuarfy  con&cat«d  the  whole  of  the  private  ptZrty 
orevery  man  woman,  and  child  in  the  Confederate  States"  Se& 
jrUl  was  wortiuly  executed  by  Montgomery  in  bis  incursion  into 
Dj^en;  and  the  dévastation,  the  pillage,  the  destruction  wS 
bave  made  a  désert  of  the  Shenandoah  viy,  would  nrbeover 
baianced  by  thousands  of  such  raids  as  that  ijon  St.  Albaw.    îf 
thi^refore,  it  were  necessarjr  to  show  that  the  Stock  on  St.  Alban^ 
wap  a  fau-  measure  of  retohation  on  the  part  of  the  ConfedeS 
Government,  we  could  do  so  without  difficuKy.    But  I  a«Sn  rS 
snjctfully  submit  that  this  question  is  not  befSe  yo^  HoST  Tf 
thé  Confederate  Stetes  had  a  right  tp  give  ordeiî  for  such  li  ex 
pedition  at  aU,  it  is  not  for  us,  non  for  your  Honor,  to  sav  whether 
or-no  this  was  a  projer  occasipn  on  which  to  exercie  thî^rT2 

I  Pni7?^lo  ^'i  *°  ^Ti-  ^î  '^^'^^^  °f  *^  Fini  rSiink 
I  could  follow  mv  leamed  friends  through  the  boots  thiv  bave 

Sfl'  f  ?°''-  *^**  ™.rR^Î*"««  «»«  ^^oûon  I  bave  hZ 
''^''^l^^^^.f'^^^^}7  the. authoiB  they  cite.  Howem 
sti^ngly  t&ose  wnters  may  advocate  the  canyiii  on  pf  waJ 'm  î 
humanemaàuçr,or  mavoontend  that  it  ought'toie  w»«ed  b S2 
way  or  m  ttiat,  they  alT  agrée  tiat  it  is  for  the  beUigeS^^tiÏÏ 

xe^gnise  M  laijrful,  the  only  remedy  i/reprisal  and  retaliatir 
Unless,  mdeed,  the  persois  actually  en|age(f  in  what  is  deemïdim 

BB  , 


'il 


■^ 


*  ' , 


it»  a-'^^^i^isiiiii  '.fc*^,4te,j»iii>;dJÀ.j^"'«SA^à.";i 


K^'4-3î;-àv.iiSï5r  ^^^^ïisRœ^^'jJ^^'olS^AlhA^'    Jw-vW'XÎ 


418 


if!.    ' 

f  , 


unlawful  expédition  are  actually  captured  bj  iheir  enemy,  in  ^hich 
cdsèythej  will  be  liable  to  be  treated  in  an^  ntanner  uiat  eiiemy 
mà^  think  {^roper,  and  the  injury  they  may  hâve  donè  can  be 
arettged  bj  retaliatory  acte,  in  the  discrétion  of  the  injored  party. 
It  ig  only  m  thèse  modes  that  tl^e  Taws  of  war  can  be  enforced,  or 
their  violation  pmûshed.  Thas,  Sf  the  prisoners  had  beeti  captured 
in  the  United  $tate8  it  would  hâve  been  for  that  Oovemment  to 
say  how  thoy  should  be  dealt  with-  They  probably  might  hâve 
been  treated  aâ  gneriHas,  perhaps  as  spies  ;  tried  oy  dlrum-head 
Court-martial,  or  i^ot  or  hanged  on  the  spot,  withont  any  form  of 
triais     y 

leaving  this  subject,  I  vish  to  refer  to  the  point  saggested 

by  M^.  Johnstonj  as  to  the  distinction  between  lawful  and  imeiwful 
vrar/  Mv^  Johnston,  in  his  argument,  insiste  that  tliis  act  was  not 
laVrnl  war  ;  he  cites  from  JudeÂ  Talmadge  and  Judge  Cowen 
to  ^ustûn  his  pretension;  and  ne  refers  to  Vattol  on  the  same 
I  find  it  difficult  to  seize  his  exact  meaning  in  this — aiid 
1  he  bas  misapprehended  the  juriste  he  quêtes.  Their  discus- 
Vas  upon  vrhat  constituted  a  law(ul  stato  of  war  ;  not  as  to 
what  \aB  a  Jawful  aet  of  hostility  between  belligerente.  And  he 
appIiesXthe  instances  Judge  Talmadge  gives  of  incurmons  which  do 
not  oonstitute  a  lawful  state  of  war,  to  tiie  nresont  case,  to  prove 
that  it^i<^  not  a  lawful  act  of  hostility.  Judge  Tahnadge  does  not 
lé  question  whether  or  no  an  unauthomed  incursion  b^  a 
^all  pakty  of  men  of  one  natiop  intè  the  torritory  of  a  neighbonng 
nation  is-in  iteelf  lawful  war,  there  being  no  war  between  the  two 
natiolàs  ;  beoause  it  is  beyond  discussion  ;  it  is  n(A  lawful  war.  But 
he  examines\what  constitutes  a  state  of  lawful  war,  Or  perfect  war, 
and  holds,  as  Mr.  Johnston  properiy  stateS,  that  acte  of  a  cer- 
ti^  charaotor  are  required  to  constituto  lawfiil  war.  But  the  way 
in  whieh  my  learned  fiiend  reads  and  applies  thèse  authorities  can 
only  be  Bp^ciatod  by  quoting  fVom  his  ëpeeoh.  He  says  ;  "  on 
<'  the  (Question  whéiber  the  circumstances  proved  in  this  cfase  clothè 
'*  the  transaction  with  the  character  of  lawnil  war,  it  i»to  be  observed 
''  that  Judge  Cowen  and  Judge  Talmadge,  his  critic,  both  agrée. 
«  <  To  warrant  the  destruction  of  properlhr,  or  the  taking  of  Ufe,'  sa^s 
<'  Judge  Cowen,  *  on  the  ground  of  pnbfic  war,  it  must  be  what  is 
<'  called  lawful  war  by  the  law  of  natums.'  *  Ail  will  agrée,'  says 
<'  Judge  Taimadgè  m  his.  review,  *  that  the  war  which  affords  impn- 
«  nity  to  tliose  eùgi^d  in  it,  must  be  a  lawfiil  war.'  Ya^l  13,  8, 
«  0.  4^  sec^  67,  say»:  *  A  war  lawful  and  'm  tbruis  cu^eftdly  to  be 
«  distmgcDilkéd  frota  m  unlawful  war  entored  On  wiâiottt  any  form, 
«  (^^MMarjfonl'tiWétf  metartioA»  which'ai«:co«iunStt6d^ÂeriHthèfat 
"  1é»M  >uan>iilj ,  01  apparent  <uwge,àB  lilte»iw  <ifHjhOttVfoitoalitiéa^ 
<•  iM'éàj'iorhaifoe  anaj^llage.'  Thefé  is  uo  ndstakiiigthe  mean* 


iisft  ^'di%i:^i'%i'%S  A'^^^^'^y-^'^'î^^^^"-*^^^^^'^^ 


-^        *.*«   ftt.^jJJ'X         u,t«^ 


419  \ 

;;  ing  of  thia  language.    If  the  prisonera  seelt'irresponsibility  hère 

"  lawful  act  by  the  law  of  nations."  ^s    °  ™^*  "^  * 

I  *lïink  there  is  no  migtaking  the  Janine  of  this  lan- 
guage.  But  it  certainly  does  ijot*"  meah  what  h*e  infère  f^ 
it;1ie  evidently  applies  thèse  citation»  to  the  act  of  th^ 
men  alone,  and  not  to  the  nature  of  the  war  now  being  c«^ed  on 

ralmadge  and  Cowen  were  discussing  the  doctrme  of  ?mn,„«f^! 
fi^mreBponaibUit^  to  municipal  law,  wMeJ^  rapjLdT^^^^ 
acts  committed  in  a  lawful  war;  and  the  Dassairas  Mr  TohiL« 
c^B,  refer  to  the  position  of  two  Uons  vSlh'^^'  ^l'JhliC 
men  Judge  Tahnadge  says  iha.t  impunity  is  oiJy  aff^ed^to  th^ê 
"enmed  nr  lawfU  war,"  he  ofviourfy  usi  Srphrase^  ^ 
deflcnptive  of  the  position  of  the  nation  to  which  such  ^1^ 

W  ÎL-^"  ,*"*^**"*^  *?''  *PP*'*^"*  «*'»®'  he  refera  to  incursions 
by  mdividmds  or  parties  of  men,  made  while  the  SZ  to    ' 
,wiuch  they  belong  îs  at  peace  ni^  the  one  whioh  they  bTade 
ana  made  without  the  authority   of  their    oT  soveL^     I 
find  ^eae  «incursions"  italîeii^  in  the  re^H;  Td  Sforî 

^h^st  ïibZ':^'^!?^'"'  ^^,  *^  ^^^  a^proprtl'to 

flhown  fW  T  ^'  ■^^''  *  "°«'*  «•"»<'®  »*  *he  text  woîld  hâve 
shown  tiiat  those  mcunHena  only  are  spoken  of,  which  take  nlace 
when  there  is  no  war.  The  question  Judge  Talmadge  îs^Xw   - 

Vattel  to  show  he  distmction  betweOn  a  war  lawful  Jd  b  f^ 
and  mère  mcursiona  without  commissions  and  without  auftoritr  1 
is  perfectly  plam  that  he  does  not  mean  incursions  koErto  a 
lawful  war  but  mcuwions  independent  of  any  war.    The  b^ten^es 
saffiS/^\?"î"^  Compa^me*  of  France,  andof  FiESS 
éStabliah^  Sunply  thaè  there  may  be  a  stato  of  Jawful  war  between 

■  ^î?!'  ïy_?^"  witiiout  commissions  or  authority,  which^o^sTot 
LTtbiuïïâr-  •?"*  -ither  T^dge,vS^l,  iTow^^^ 
teS^St  n^  1*  incursion,  by  a.pa*^  from  one  countiy,  into  the 
temtoiy  pf^ptlM>r,  m  time  of  war,  is  of  iteelf  an  uSawfiÛ  wS 

w^"£' .  •  ?*^^  ïn«PpUcable  hère,  because  a  stato  of  lawS 


wvoprand  ui  mopiiMtent  with  eveiy  principle  tO  bTSÎS 


hi 
-  u 


J 


-'^ffJ 


i 


^^ù«ij.  j.'Ut^V'  ^ 


^l^fi 


^v^lWi'.       f.»ï^<^  £<M^ '-J^i^i^^lLiSiV^Jt^K  o  «l_c.       J^Sr 


»ï'.y1) 


420 


il 


il 
il 


àoYfn  on  the  subject,  either  in  the  opinion  of  Talinadge,  or  in 
any  pther  authority.       / 

AÀ,  to  this  question  éf  lawfiil  war,  there  are  just  two  vor  three 

more  iuthorities  to  whioh  I  will  refer,  as  establishing  the  position 

I  contei^d  for.    In  Yanel,  page  391,  in  the  note  it  is  sai<LL 

"  As  laations  are  independent  of  each  other,  and  ackn^ege  nq^ 

superiot^  there  is,/ unfortonatelj,  no  sovereign  power  among 

nations  tq  uphold  oir  enforce  the  International  law  ;  no  tribunal 

to  which  \the  opùressed  can  appeal,  as  of  right,  agfdnst  the 

oppresser ;\and,  consequently,.  11  ei%er  nation  refîîse  to  give 

effect  to  the  ^stablished  principles  of  international  law,  tSe  onlj 

^f  redresfl  is  bv  resorting  to  anns,  and  enforcing  the  performance 

*^  of  the  national  4^1igations,  and  tiiis  is  the  principle  of  just  war." 

In  addi^on,  I  wu^  cite  a  few  wor^  from  Hautereidlle,  page  161  : 

At  page  lôl,4e  says  :  "  Sur  mer  comme  sur  terre,  le  belligé- 

"  rant  a^e  droit  abaoju  de  nuire  à  son  ennemi  par  tous  les  moyens 

"  direct»  qui  ^nt  eil  son  pouvoir,  et  seulement  par  les  moyens 

'y  a  donc  aucune  distinction  à  faire  à  cet  égard 

it  maritime  et  le  droit  terrestre."    At  page  162  : 

nation,  dans  aucun  temps,  il  n'a  existé  une  loi,  un 

sur  terre,  exempte  de  la  confiscation  les  propriétés 

l'ennemi.  *  *  *     Quant  aux  propriétés  mobilières, 

"  elles  ne /sont  paâ  plus  respectées  à  terre  que  sur  mer.     Sans 

*'  parler  des  pillages  autorisés  par  les  usages  de  toutes  les  nations, 

.  *'  dans  toutes  l^s  guerres  terrestres,  même  dans  celle  de  1854,  qui 

"  fut^îgée  avec  tant  de  modération  et  d'humanité,  les  profniétés  t 

"  prîmes  de  l'ennemi'  furent  prises  et  détruites  par  les  troupes 

P    "  ennemies."    -  i 

I  think  that  is  a  tolerably  clear  exposition  from  one  of  the  most 
^Nnodem  continental  writers  on  the  subject  of  the  rights  of  parties 
în  war.  The  conclusion  I  draw  from  tiiese  authonties  i|,Ôiis, — 
that  the  tendency  of  modem  rules  of  warfare  is  to  restrict  the 
effects  of  war  to  soldiers  in  the  field  ;  but  that  this  does  notaffect 
theabstract  rights  of  the  belligerents,  who  are  tiie  sole  judges  of  tixe 
meàns  they  are  entitied  to  einploy  in  carrying  on  tiie  war. 

^ut  judging  from  the  care  with  which  my  learned  friends  next 
peint  was  elaborated,  and  the  véhémence  witl\  which  it  was  urged, 
they  rely  greatiy  uçon  it  for  the  success  of  their  application. — 
ffhey  say  <£at  the  prisonere  were  guilty  of  a  breach  of  neutrality  ; 
/and  the  conséquence  the^  draw  from  it  is  a  oorious  one.  They 
/accuse  thèse  men  of  havmg  infrinjrad  our  law.  They  also  accuse 
/  them  of  having  oommitted  in  the  United  States,  an  offenoe  which 


"  direct»;  il 
"  entre  le 
"  Chez  auc 
"  usage  qi 
privées  q^e 


<( 


/    the  autboritiM  there  consider  an  act  of  robbery.  -The  urisoneoL-^ 

/    say  they  are  belligerents,-— that  they  acted  under  a  commission; 

and  more  than  that, — ^had  direct  authority  for  tbe  aot  'Sh.e  learned 


•'  1 


.  .rf. 


421 


gentlemen  opposite  reply,— supposing  ail  thia  to  be  true,  you  hâve 
committed  a  crime  against  the  law  of  Canada  and  Great  Britain  ; 
therefore  you  must  be  éxtradited  and  punished  in  the  United 
States  for  the  crime  committed  there,  afthough,  if  you  had  not 
yiolated  our  laws,  vou  could  not  hâve  been  so  extradited.  That 
ifl  the  proposition  they  présent  to  the  Court. 
.  Mr.  Betkune. — I  never  stated  so. 

Mr,  Ahbott.-'-^ôt  in  that  fonn;  but  that  is  the  sensé  of  your 
argument.  I  feel  convinced  that  every  one  who  heajft  me  will  say 
that  it  must  assume  that  fonn,  otherwise  it  is  of  no  value  at  tUI. 
^  Because  a  breach  of  neutrality  waa  committed  by  those  men,  they 
hâve  lopt  the  character  of  belligerents  ;  they  hâve  invalidated  the 
authority  given  them  by  the  Confederate  States  ;  they  hâve  forfeited 
ail  the  riffhts  of  Confederate  subjects  and  soldiers.  This  is  the 
position  which  Counsél  on  the  other  side  assume. 

Smith,  J.—The  proposition  put  by  Mr.  Bethone  and  the  other 
Counsel  on  that  side  is  this:  that  the  prisoners,  although  belligerents 
in  their  own  country,  yet,  having  sought  an  asylum  m  Canada,  hav© 
thereby  lost  that  character.  That,  being  hère,  they  planned  and 
executed  an  exnedition  into  the  United  States  fisom  this  country  ; 
and  retumed  aîlerwards  to  Canada.  And  the  conclusion  drawn 
from  this  State  of  facts  is  simply  this,  that  théjMuannot  do  any  bel- 
ligerent  act  at  ail.  Thatt»any  attempt  to  do  so,  is  so  far  unlawfiil, 
^t  i^  eànnot  be  protected  by  the  law  regulating  belligerent  rights. 

Mr.  BetkuM. — That  is  our  position  preoisely. 

Mr.  ^Wott.^That  is  one  of  theh-  positions.  %e  Counsel  opposed 
to  us  say  that  b^  seeking  an  asylum  and  residmg  in  Canada,  thèse  pri- 
soners lost  their  belligerent  quality  ;  that  as  a  matter  of  fact  they 
ceased  to  be  belligerents,  and  could  not  carry  out  àny  belligerent 
enterprise  a^nst  the  Northern  States,  of  whom  they  were  the 
enemies  by  birth  and  by  their  commissions.  Hx^  there  is  also 
another  proposition  which  thev  submitted  to  the  Ootirt.  There  can 
be  no  çoBsiWlity  of  escape  from  it,  for  a  great  portion  of  their 
authorities  are  intended  to  apply  to  it  ;  namely,  tLt  because  the 
prisoners  violated  the  neutrality  of  this  Province,  and  thus  commit- 
ted an  unlawful  act,— and  mv  leamed  friends  opposite  cited  a  great 
many  authorities  to  prove  that  an  incursion  from  a  neutral  to  a 
belligerent  country  wafl  an  unlawful  act,— the  extradition  of  the 
accused,  if  demanded,  ihould  be  granted. 

Mr.  Johnson.-— Soi  for  this  act,  but  for  another  act.  Ail  we 
contend  for  is  tiiis— that  you  are  setting  up  hère  an  answer  to 
otherwise  proved  felony,  and  that  you  do  not  prove  it  to  be  a  law- 

=4bl-MMW«N"— — — "~  - 

Mr.  AiboU.— Sot  for  this  act,  but  because  this  act  accompanied 
or  preceded  the  act  for  which  extradition  is  demanded.— That  is 


«  _ 
Ml 


\â 


.Mil  '' 


^ 


t\\ 


,»«&'_i 


422 


t. 


jast  what  I  insist  the  other  side  are  contending  for.  They  argue 
that  because  thèse  men  made  this  raid,  as  thej  say,  from  Canada, 
they  committed  an  unlawM  aot,  inasmuch  as  they  broke  pur  neu- 
traEty  ;  that  because  they  committed  an  unlawfid  act  quoad  us,  the 
United  States  are  entîtled  to  hâve  them  extradit^,  as  this  unli^iil 
act  deprires  them  of  the  protection  our  courts  would  otherwise  a^d 
them  agalnst  the  United  States.  It  is  impossible  to  state  the  proposi^ 
tion  in  any  other  way.  A  large  portion  of  Mr.  Johnson'6  speech  ià 
directed  tc^this  view  ;  and  in  it  ne  actuaOy  speaks  of  our  govem- 
ment  bemg  unable  to  overlook  the  fact  that  the  entetprise  was, 
to  somefextent,  planned  and  directed  hère.  And  te  proposes 
to  shew  the  sensé  our  govemment  haa  ôf  its  dignity,  and  its  mode  of 
regarding  an  offence  àgainst  itself,  by  urging  that  very  oSènce  as  a 
ground  for  handin^  the  offenders  over  to  a  foreign  country  for  pun- 
ishment.  That  is  virtually  the  proposition  both  of  my  teamed  friénds 
for  the  crssm,  and  of  those  for  the  United  States.  Théy  bave  cited 
authoriiies  to  prove  that  the  engaging  in  a  hostile  expédition  from 
a  neutral  temtory  is  unlawful.  Hère  agam  I  am  able  to  agrée 
with  their  authorities,  but  must  utterly  protest  against  their  appli- 
cation. I  admit  that  such  an  expédition  is  unlaWfnl  as  regards  the 
nieutral.  It  is  undoubtedly  illégal  to  organise  and  càrry  out  a  hos- 
tile incursion  from  our  countiy  into  the.  United  States.  But  they 
hâve  to  go  a  step  further,  and  shew  us  the  conséquence  of  that  un- 
lawfîil  act.  What  is  the  effect  of  its  iUegfdity  ?  Of  course  I  do 
not  admit,  except  for  the  purpoise  of  this  arguinent,  that  there  was 
any  breach  of  our  neutrality  ;  but,  I  say ,  snpposing  that  the  Case  wnich 
my  }eamed  friends  put^lbe  establidied  in  the  dearest  possible  iray  ; 
sm>pose  that  those  twenty  men  organized  at  St.  Johns,  armed  them- 
seîves  there,  thence  orossed  to  the  United  Sfotes  and  made  their 
attack  on  St.  Albans,  Mr.  Young  being,  at  the  time,  at  their  head, 
— takmg  this  hypothetical  state  of  things,  aie  prisonen  undoubtedly 
did  ifhat  was  Ûe^  quoad  us  ;  they  were  gaûtj  of  a  gross  outrage 
npon  us  ;  and  their  Govemment,  if  they  aumoriied  it,  committed  bjx 
offence  i^unst  Oreat  J^tain,  and  gave  her  tiie  rigbt  of  dMoanding 
apology  and  redress,  and  also  of  punidiing  thé  offenders  if  foond 
within  her  bordera.  So  &r  as  I  hâve  now  stated  the  law  applicable 
to  this  supposed  state  of  things,  my  learoed  firiends'  aumorities 
exaotly  confina  my  views.  But  my  leamed  friends  insist  that  there 
are  further  conséquences  attached  to  iMs  act  of  disob^enoe  to  our 
laws,  and  thaithey,  as  représentant  the  crown  and  the  United  States, 
hâve  a  light  to  make  that  disobedience  an  argument  for  extradition. 
Now  lassert  and  ahallmresentlyprovetthat  the  United  States  Oovem- 
ment  hâve  nothing  to  do  with  that  breach  of  our  Irwb — nnttwnf»  wbikt- 


eyér  to  sav  m  the  matter  ;  and  that  it  does  not  riràt  within  her  rights 
to  say  before  a  court  of  law,  that  Great  Britam  pnust  enforce  the 


:^léi,,-mâ':':-:;'^^v,M 


423 


hère,  in  the<  m 

doing.    And  I 

other  matter,  b 


law    vhÎQÎi  prohibita  'such  proceedmgs.    If  she  bas  anv  such 
right  àt  àll,  it  is  merely  a  right  of   remonstradng  with  tide 
Government  of  Great  Britain,    But  she  bas  no  rigbt  before  our 
courts  to  prpsecute'  such  an  offence,  still  less  to  urge  it  as  a  reason 
for  l^ding  our  criminals  over  to  her  for  punishment.    The  ques- 
tion is  a  very  sùnple  one  for  us.    The  pnsoners  hâve  violated  our 
law;  and  they  are  charged  with  anotler  offence  to  wbich  their 
belligérant  cbaracter  is  a  good  defencd    Are  we  to  refuse  them 
the  benefit  of  that  defence  because  tney  hâve  offended,  ua  in 
,  ftnother  respect  ?    I  ingist  that  we  should  adopt  th&  pçoper  con- 
stitutional  reînedy^  nèlfish  them  for  the  crime  they  committed 
Vrized  by  our  laws  and  as  they  justify  us  in 
^|>tny  be  a  long  day,  either.  in  this  orany 
"we  rerase  to  exercise  our  proppr  constitutional 
aut^ority  ;  or  become  so  degraded  as  to  deliver  over  men  în  the 
po8iti(}^  pf  the  prisoners,  to  their  natural  enemies,  for  a  mock  trial, 
as  a  mode  of  vindicating  our  honor  and  digrûty.    Such  a  qourse 
might  avenge  us,  but  it  would  be  grossly  uniust  and  dishonprable, 
Çontraiy  therefore  to  the  pretensions  of  my  îeamed  friends,  I 
subnjit  as  a  proposition  which  it  is  utterly  impossible  to  get  over, 
that  a  breach  of  our  law  bas  no  bearing  whatever  upon,  or  relation 
^       to,  the  act  done  at  St.  Albans.    It  is  that  act  and  that  act  alone, 
which  the  United  States  bave  a  right  to  complain  of.    They  çan 
only  demand  the  extradition  of  thèse  men,  because,  on  a  oertûn  oay 
they  assailed,  pillaged,  and  attempted  to  hum,  a  town  of  theirs, 
twepty  miles  from  our  border.    Their  demand  for  extradition  must 
rest  on  thiq  alone,  and  not  upon  apything  that  took  place  in,  onr 
çountry,  either  before  or  after  the  raid.    In  short,  it  is  not  becjawLse 
thpse  men  comn^tted  misprision  of  treason  agtûnst  Great  Britain, 
that  they  are  liableto  be  delivered  over  to  the  United  States  for  an 
act  committedin  iheir  territory. 

,    15»e  prétendons  ofnyr  leàmed  friends  in  this  behalf  do  so  ahpck 

.  «U  my  preconçeiyed  ideas  of  law  ^d  of  justice,  Àat  I  thbk;  I  ip^aty 

piroperly  callfor  ai»  authqrity,  if  there  be  one,  which  déclares,  tl(at 

oecftuse  an  act  of  hostility  committed  by  one  belligerent  witb^»,'t^^e 

territorj^  of  wiothei*,  is  complicatéd  with.  the  breaçh  of  the  neutjnjity 

,<>f,  a  tlufd  nation,  1jhe*beUigerents  o&ndmg  asainst  tiie  ne^tfld 

nation,  are  thereby  deprivea  of  tbéù:  rights  as  bellige^nts  gmad 

4)eir  onemy.      We  bave  had  a  good  many  citations,  it  is^Çie, 

tut  tiiey  rtop^  hr  short  of  this  pretension.    Those  Mr.  Beil^e 

siibmiittéd  on  thw-  point,  had  référence  to  captures  in  maritime  war- 

fare,  inacle  either  m  neutral  watera  or  direofly  from  si^oh  wa'ij^ni, 

— Jfce  Qi^ture^ts  itwwrw  taking  ita  inception  in,  n^ufaia^^wator-     '~  ^ 


he  citêp,  thiem  to  show  thaj)  such  captures  are  unlawfol. 
-agfûn,  strange  to  say,  we  agrée  about  the  abstract  law.    I 


m 


■'et 


3 

'■f 


S 


i     8i 


j^ 


1 — n* 


t 


-»M 


%l^ 


Vf 


424 


that  such  captures  are  uiJtfwful  in  one  sensé  ;  that  is,  they  are  void- 
ah\%  but  not  absolutely  void.  But  do  bis  autbbrities  show  that  the 
persons  making  such  captures,  weire  evôr  held  amenable  as  pirates 
for  the  capturés  so  made  ?  If  thèse  authorities  sustain  him  at  ail, 
they  must  go  that  length.  If  they  do  not,  they  are  wortiiless  to  hhn. 
If  the  violation  of  neutralily  committed  by  such  a  capter,  takes  away 
from  him  bis  belligerent  character,  and  reducès  him  to  a  mère 
pirate,  subjept  as  such  to  the  municipaj  law  of  the  country  from 
which  he  madç  thé  capture,  then  thô  authoiity  is  ii>  point  ;  and  the 
"  prisoners,  in  like  manner,  "will  be  converted  by  thé  effèct  of  a  breach 
of  our  neutrality,  into  inerè  rol^bers,  liable  to  be  extradîted  and 
tried  p  Vennont.  But  the  mère  statement  of  such  a  monstrous 
notion  of  lavr  should'  suflSce  to  réfute  it.  In  reality,  îs  there  ' 
a  case,  a  dictum,  or  an  opinion  "  stated  in  any  w.ork  that  bas  been 
referred  to,  tending  to  show  that,'because  such  a  capture  was  illé- 
gal and  would  not  vest  any  title  in  the  captor,  that  captor  was  a 
mère  pirate  ?  Or  that  he  oolild  be  made  amenable  in  any  way  to 
the  court»  of  the  pô^r  whose  property  he  had  been  taking  as  his 
prize,  or.  be  delivereff  up  to  such  power  for  any  stich  trial  ?  Is 
there  anything  which  establishes  that  position?  My  leamed 
ïriend  Mr.  Johnson  laughs  ;  but  I  ask  him  to  cite  some  book  in 
favor  of  such  a  view. 

Mr.  Johnson.— li  does  not  follow  that  I  am  laughing  at  you. 
True,  thert  is  no  case  in  which  a  partvvhas  been  so  demanded,  be- 
cause  it  waS  an  aot  of  maritime  war  ;  but  In  case  of  robbery  or  for- 
gery,  would  the  partv  n^t  be  gîven  up  ? 

Mr.  ^Wo«.--My  jeatiied  ffiend's  laughing  is  of  no  conséquence, 
of  course,  further  than  as  I  understand  it  to  express  dissent  ;  and  if 
he  does  dissent  from  what  I  am  now  saying,  I  âsk  him  again^to 
cite  lan  authority,  or  boôk,  or  opinion,  justifying  such  dissent;  and 
I  suppose  my  leamed  frîend  will  hâve  no  difficulty  in  doing  so,  if 
there  be  any  such.  However,  he  does  not  ;  but  admits  that  there  ir 
no  case  in  which  a  belligerent  making  a  capture,  declared  illégal 
because  made  in  neutral  waten,  was  ever  demanded  M  the 
other  belligerent.  But  he  says  this  is  maritime  warfkre  m  which 
the  rules  are  différent.  Well,  this  is  one  of  the  particnhirs  in  which 
my  leamed  friends  differ  a  little  in  their  views  of  tiie  hw.  Mf. 
Devlin  cited  ftbtiiorities  croving  that  tiiere  was  no  différence 
between  warfiffe  at  sea  and  on  land.  .\    '  ■ 

Mr.  Devlin.^The  very  opposite  ;  there  is  a  différence  between 
.them. 

Mr.  A6bott.—lt  is  possible  it  may  hâve  been  Mr.  Bethune  who 
cited  it  ;  certainly,  one  of  them  did. 
Mr.  l>evUn.r-J)emtià  it 


Mr.  Abbott.— On  reflection  I  am  certain  that  Mr.  Devlin  cited. 


'   »• 


425  - 

an  authority  showmg^at  robbery  by  land,  and  piracy  at  sea  wem 

WvJT™*?  'P'"*^'"'  b/.land  and  by  sea.  Ld  I  co^dSto 
bothofthemînmynote8,ifitwereworthwhae.  But  in  rSr  a 
ref^nce  to  eiAer  Vattel  or  HaUeck,,which  appear  to  be  the  bSks 
moflt  froquentlv  cited  on  *he  other  eide,  wiU  Jhow  thaf  Z^« 
aplesappIicabfetotheBe  twokindsof  w^^ 
although  m  the  case  of  warfarè  by  land,  the  abstr^t  riS^nf 
;  plunder  and  pillage  is  restricted  &  p«^tice,  tmTlttt  it 
gevails  m  foU  fowe.  And  tibe  quSon'jusT  mîde  from 
HautefeuUle  M  precisely  to  the  point.    Itv  fact,  as  tC  otW 

te^    fr*''T.P'**i*'  Pi^^^y  a^i^  «>bbei7  arf  conveSe 
tenjs  ;  the  one  being  the  same  offence  by  laid  that  the  Xr 
18  by  sea.    Mr.  Johnson  admits  that  there  is  no  case^wS 
it  bas  been  held  that  the  captor  in  such  instances  L  I  We' 
spoken  of,  and  ^  his  authon^ties  refer  to,  waTheldAunUaWe 
âj8  a  pirate  by  the  municipal  tribunals  of'the  othe/bCrent 
There  is  ntft  only  no. case  of  this  kind,  but  th/possftSr  of 
such  a  thiug  bas  never^  been  hinted  at  in  W>oV   On  the 
contaLry  m  the  veiy  books  cited  by  the  other  ààe,  it  îs  laid  down 
?o în">wf^'  «>5the  iuju^ed  biigerent  hrnôtUnVî^É47er 
todowiththematterj  that  the  belligérent.of  Whom  the  sMb  wal 

his  own  d^ty  and  sovereignty.    It  is  he  who  says,  you  shall  n^t  r 
corne  within  my  borders,  and  ise-  them  as  a  vantée  ^^oundfzSm 
whch  to  make  war  on  myneighbor.    Ahd  if  y^  do,  I  mZt 
^^^^•'X?'  """^^t  '^  r^  «*P*"^«'  «"^di^ill  fo;ce  yo/to 

punished  bv  the  au  honties  to  whom  the  property^Iongs,  nol-  can 
Aeir  compfamt  ag^t  him  be  hstened  to'în  Ae?ourt8  o? the  neu^ 

^L  nf"^-^  -n    T"".'"'*  *5**  *®  ^'^Pt^^^  "^»y  be  annulled  by 
reawn  of  its  illégal  ongin,;  for  that  Ule^ty  dis  not  con<jerJ 

AbbStt  reSed^-'*'  ®'''^**'*™®'*  ^^^  ^  hour,  and  at  2  o'dock  Mr;. 

tie«  ?^§Tv  A"  ""'  adîoui^ed,  to  examine-how  hr  the  authori- 
taes  crted  by  the  Counsel  for  the  Crown  and  for  the  prosecution, 

Ki^if^'  /ïïi'u  ^^  ***^'.  **'^^»'  ^*^  ^«ard  to^  the  effect 
at  St.  Albaûs.    The  authonbes  quoted  m  support  S  their  view 

^^^J^'^y^^g^f- °^^^'  ^"*  buttheygo^oJffthef. 


-^B^îte»?-M^''^ifrn-^  -— -^^^^  ""'^  om^weygonoliirthor. 

"^wciteffm^dman,  wTio  says  in  distinct  toni  th^captowa 

within  neutral  temtory,  or  made  by  expéditions  proceeding  W 


'  i 


:./ 


pi, 


• 


ïm 


i"  '"il"!  j 


•L^y 


»426. 


•^/é   ■ 


neutral  tenritory,  are  illégal,  which  is  the  precîaei  .doctrine  my 
^amed  frienfe  rely  on.    "But,"  "  he  adds,  "  not  wUh  respect  to 
the  enemtf."  ,      .  t      ,;, 

TlJô  citations  from  Azuni>  Burlamaqui,  Wh«M|U)n,  PnilUmore, 
and  Kent,  are  àU  to  the  same  effect.  ,  ;  s 

This,  then,  is  undoubtedlj  aie  correct  doctrine,  anid,  it  cannot  be 
4isputed.  !|?o  set  the  matter  at  r^st,  Ladoiit,  b,  1^e,wQrds  of  thèse 
citations,  that  "  hostilities  cannot  ïawiMjr  bé  exercised  within.  the 
territorial. jurisdiction  of  the  neutral  statç'!  (TVheaton  713); 
that  "  captures  made  by  the  belligerent  cruisers  within  the  limita 
of  a  neutral  state  are  Ulegal '^— that  ^ey  are  iUegal  also  if  the 
«xpedition  which  makes  them  "  prpceed^  from  neùtràl  territbry  ;" 
that  "  no  prpximate  acte  of  war  are  in  any  manner  to  be  allowed 
to  ori^nate  on  neutral  ground  l"/"^**'  ever^  voluntary  entrée 
mto  neutral  territory,  with  lïDstue  purposes,  is  ab^lutek,  un|aw- 
ful."  I  do  notthinjc  I  hâve  otutted  onJÉl  proposition  of  hkw  to  be 
found  in  ail  the  authorities  citewon  this  p<mit,  and,  for  the  third  or 
fourth  time  I  find  ijiyseif  ireceiymg  my  leamed  friends'Yiçwa  of  the 
law,  a1}soluteIy  as  a^oms,  whiçn  I  baye  neit^er  _the  abifity,.  nor  the 
désire  tp  dispute  :  but  demandiUg  t^^andagain;  suppoeethe  ïaw 
is  as  they  State  it,  does  it  bçar  mt  their  application  for  extiradition  ?  I 
say  it  does  oot,  and.  I  contend/that  al],  theiraiijithorities  in  this  connec- 
tion &11  far  short  of  any  siiph  pret^nûon.  S^e»  for  mstuice,  the  case 
of  an  Ulegal  capturç  i]^e  in/or  from,  neutre  territory^  The  consé- 
quence of  suçh  a  capture  is  l^t  thç  prize  courts  déclare  thie  capture 
null,  and  order  t^e  property  to  be  r^stor^d.  But  not  that  the  par- 
ties who  made  it  are  guîlty  of  i^y  oSence  agajnst  the  belligerent, 
becanse  thôy  misule  à  cap:turê  in  neutral  waters  ;  or  that  tiierefore 
they  mùst  be  h^d  to  h^M$te$  huimni!ffet!tm9'  I  yeniiure  to  say  that 
no  suggestion  çan  be  found^  of  the  poasibiliijof  »4p!Ctnae  of  tiji^  Ismà 
Iteing  entertiùlied  J^y  any  nfttion.  But  if  the  capture  be  bterfered 
with,  a&d  the  property  pe  ordered  to  be  returned»  it  b  not  l)ecau8e 
*  of  the  injuiy  to  the  belligerent.  It  is  only  in  virtue  of  a  compl^unt 
by  the  neutral,  of  a  violat^op  of  its  80vei!eignty  by  t^e  offen4ing  bel- 
ligerent, that  me  capture  can  be  annulled.  It  is  the  oentnd  jppjver 
4ilone  which  çan  interfère,  j^  {Procure  ,th@  ret^rn  of  prpperti^  Cf^^tured 
withia  ità  jumdiçtion  ;  juid  oi^,i^9iu;«ie  a^De)^gereni,iU>tibn 
Im  li^uiist  a  nenixal  for  permitting  the  yiôl^t^où  of  its  neubral  jui^Q; 
^ôtt,  18  tp  eau  ito  jg;0Teniiiien|;  tp  accpun^.^r  jo  dpiiig  ;  ,^d  to  îoaké 
the  T^fo^  of  sftlai^tion  k  çtmf  be^y'^lf  thinlu pro^^fir^ >  ^  > 
OhiMicéllor  ^B^ènt  States  t!he  dpctnne  very  clearhr  on  the  pùcé 
ne:^  i^r  âulèé.  cited  by  luy  leaiped  firieqd  on  miia^^î^inij,  ,Ue 

•**  làent  to  ndse  ine  objecjiôh  to  a  ci^ptûre  ànd  i^tle,  fi>)iiadc^  pa^ 
•*^  violation  of  neutral  rights.    The  adverse  belligerent  hàs  no  rigbt 


r^ 


\  >i 


427 


« 


il 


to^oompldn,  when  the  pme^  is  duly  libelled  before  a  compétent 
Court.  If  any  complamt  w  lo  be  made  on  the  part  of  thrcaD- 
tored,  rt  mu8t  be  by  his  goyemment  to  the  neutïïi  goverTleX 
for  a  frauddent,  or  unworthy,  or  unnecessary  subSissioii  to  à 

^  ^e  yhole  of  the  discnssiori  in  the  three  or  four  precedmg  paires 

to  the  effect  of  the  capture  of  a  vessel  ^thin  the  lindte  of  the  neu- 

^  i^''^'^'-  '"^  "^^l"^  ^^^^"^  *^«  transmission  of  the  tîtle  to 
the  captured  shui,  or  efifects  ;  with  regardf  to  the  neutral-not  with 
respe^  to  the  belhgerent.  The  Jelfgerent  is  not  statedChave 
any  nght    to  find  fault  with   the    proceedipgs  of  his  enemv 

simply  that  the  capture  within  thU  neutral  territory,  %  illégal 

2Zfî^^'K^"*'"J  ^''?''  ''°?  *^'^*  *^«  ****«'•  «»ay  vindicate  its 
sovereignty  by  refusïng  to  acknowledge  the  vàKdity  of  the  title 

2?2  ?i,.îfl  *"*'*\**^  «he^property  to  the  belligerent  from 
Triiom  it  had  been  teken.    The  learned  Counsel  oppSsîte  duo^d 

rebutons  of  Jje  doctrmeB  already  cfted  f«,m  "  Wheaton  "  anJ 
4J,5  f  *  .,TP*^g  ^J^®  ^«"7  ^Oï^s  of  those  authors.  I  muàtsay 
îSil.î  -^^  P®''*' ■ '^*  ***  advantage  he  proposes  to  gain  from 
ffl!^^L«   '^"'V  'îi',  *'?  «****  the  coWquence%f  kch 

K.n  Kl  ""^  T*^  ^''^^^'y'  '''^^  *^«*  coMé(iuence  never 
bears  any  semblance  to  the  one  he  seeks  to  dràw  froîn  this.  For 
3i«ton(je  at  pafee  525  General  Halleck  speaks  of  the  différence 

S  ^«"ï  ^*r  are  entitled  to.  An/ this  distinction  waa^eadto  us 
jtè  great  unotion.  But  m  what  way  doeB  it  aid  my  tearied  friend's 

^  U  "'/'?v  *^®''®  ****®^'  ***  when  refege  is  sought  'wîthin 
&e  bordera  of  the.  netxtml  by  belligerent  trpo^,  those  Ioom  ïe 

Sn^i.^  ^"^«  "^^^y '  '«'^  *^«  prisonerg  relewed.  I  find 
îfcÏT  ^««Ïf""«««î«><»eta^pfl^tob'etreâtella8rohbe^^ 
«nd  hapded  over  to  the  ordiminr  municipal  éoort^  îàt  puriisMent 
w^ch  18  the  remedy  my  learàeâ  friènds  fleài»  to  éaac^on  6y  this 
autibonty,  rf  they  hâve  any  oWéct  at  AU  ih  m&ag  it.  t  finà  ateo 
Mnong  ttiese  citataons  from  ÔaUeck,  ampfe  coiârmatioi  of  toy 
iZiy  t^t  ^"^^^  l^t*  ^  the  lieutral  to  make  a  violatidn if 


^..iJÂ  iJHL^       ^  y^  ■  ■  «"p_"g«M»i  10  maro  a  vioiatitfn  m 
It  w  laid  doT^  distinctly  at  p.  581,  «  on  the  pnnciplé, 


atated  it. 


,-  '      T  .1 


,      r 


i 


I' 


i  428     ".       ■ 

"  that  tJie  neiUral  êtate  ahne  ha»  been  injwed  by  the  capture 
"  that  the  hostile  claiinant  bas  no  right  to  appear /or  Uu  purpote  of 
«  8ugge»ting  the  invalidUy  of  the  capture^  And  be  saya  that  It 
,18  the  nght  and  duty  of  the  neutral  to  restore  bboty  captured  in 
vioUtion  of  neutral  nghta,  if  it  cornes  bto  the  possession  of  the 
neutral  state.  But  the  référence  t<rp.  629  of  Halleok  is  more 
surprising  than  any  I  baye  yet  seen.  He  there  lays  down  the  suffi- 
ciently  aimisle  rule  that  ifj  a  neutral  neglects  or  refiises  to  maintain 
the  inviolability  of  its  terjitory,  it  is  a  catu»  beUi. 

Mr.  Bethune.—!  cited  that  in  support  of  the  proposition,  that 
if  you  were  to  maintain  that  an  âct  of  this  kind  was  légal,  it  would 
be  eauivalent  to  an  act  of  war  against  the  United  States. 

Mr.  Abbott.— li  is  a  fallac^,  which  I  bave  repéatedly  emoeed,  to 
argue  that  your  Honor  musfc  eitber  hold  that  tb§9e  men  aoted  legally 
or  order  their  extradition. ,  The  two  propositions  hav©  no  reUtion 
to  each  other.  The  rdectlon  of  the  one  bas  no  bearing  whatever 
upon  the  rejeotion  or  âfcceptanqe  of  the  other.  The  question  is  net 
wbether  or  no  thev  acted  i^egaUy  hère  ;  nbr  can  it  be,  unless  it  be 
shewn  ^t  the  légal  conséquence  of  Ulegality  is  extradition. 
Would  ihey  not  hâve  acted^illegally  if  they  had  committèd  larceny, 
or  swindled  ?  Then  ^ouW  my  leamed  friends  say,  you  must 
Approve  of  tite  larceny,  or  you  must  exbradite  tiiem  ?  The  whole 
question  is  whether  or  no  they  committèd  robbery  in  St.  Albans; 
and  boldmg  that  the  oflFence  they  committèd  there  was  not  robbery 
o.l  ,?  °^  "équivalent  *o  an  aot  of  war  against  tiie  United 
btates.  There  would  seen^  to  me  to  be  a  strange  confusion  of 
ideas  runmng  through  ail  this  argument.  Breaches  of  neutatdity, 
the  ordMAiT  crimima  l»w,  hostile  incursions,  the  powers  and 
dubes  or  Courts,  and  the  powers  and  duties  of  Govenmients, 
seem  to  be  aU  jumbled.  togetiier  in  inextiricable  confusion.  If 
my  leamed  friend  had  said  tiiat  tiie  sanction  of  the  British 
Goyenunent  to  acts  of  tiùg  Idnd  would  be  a  eanu  beUL  I 
could  bave  understood  him  ;  but  when  he  speaks  of  your  Honor's 
decisioa  as  to  tiie  charaoter  of  tiiese  men^s  acts,  examined  with 
référence  to  a  spécial  statiite,  as  being  an  act  of  war,  I  confess 
my  entire  mabihty  to  appreciate  bis  view.  The  matter  seems  to 
me  ve^  simple.  Every  belligerent  bas  the  right  to  demand  tiiat 
a  neut*al  State  shaJljmintain  tiie  .inviolability  of  its  territoiy.  And 
every  n^tral  State  SSting  honorably  will  endeavor  to  do  so.  But 
•I  u  t7  .e^^traditing  men  who  violate  its  neutraUty,  to  be  dealt 
withby  theur  e^emies  ;  or  by  indicting  and  punishing  them  itself  ? 
Is  there  a  nïition  in  existence  that  bas  eyer  stooped  so  low  as  to. 


>^ 


ik- 


m .: 


429  , 

And  we  are  doing  so.  We  hâve  taken  means,  and  at  great  expenae 
to  this  country  too,  to  maintain  our  neutrality  inviolate.  And  thia 
rncureion  and  the  captur^of  the  PMlo  Par%m»  hâve  been  made 
the  occasion  for  domg  so.  We  hâve  taken  the  most  energètic  pre- 
ventive^measures  in  our  power  ;  we  hâve  passed  extraordinary  laws 
fflving  to  the  Government  extraordinary  powers,  in  aid  of  ourother 
efforte,  and  moreover  we  hâve  under  our  laws  provisions  under 
whïch  those  who  commit  such  acts  can  be  punished.  Not  by  extra- 
^ting  ^em,  but  by  submittmg  an  mdictment  against  them  to  the 
Grand  Jury  now  sitting,  as  my  friends  opposite  should  bave  done, 
if  they  thought  them  guilty  of  a  breach  of  our  neutraUty  ;  in  «rder 
to  their  pumshment  hère  ;  not  by  leaving  our  sovereignty  and 
oùlr  authonty  to  be  \dndicated  by  our  n^bours. 

^  ,^\^«»''«r-T^®  ^^  °®*'®"  °^*^«  ^^^^  do  nol  require  to  be 
told  what  ttieur  duty  is  in  this  matter.  We  never  pretended  any- 
thrng  80  absurd  as  that  parties  could  be  extradited  for  a  mère 
breach  of  neutrality  ;  but  for  committing  two  offences,  a  breach -of 
<^ur  neutrality  and  another  offence. 

^r.^M«)tt.—Idonot  pretend/to  dictate  to  myleamed  friend 
what  his  duty  is,  but  I  find  tha^ifUe  books  it  is  laid  down  as  a  propo- 
sition of  law,  as  a  constitjjtiônal  maxim,  as  a  doctrine  comportmè 
with  the  dig^aty  of  a^êèVereign  State,  that  if  a  person  be  found 
within  its  lumta-^ged  with  two  species  of  crimes,— one  com^ 
mitted  withrn,  and  the  other  beyond  its  bordera;  he  must  first 
be  dealt  with  for  the  offence  committed  within  its  own  jurisdiction 
Wore  bemg  handed  over  to  a  foreign  State  to  be  punished  for  thé 
^e  committed  there.  I  tell  them  that  such  is  the  law  of  this 
Eritoir«.  And  I  say,  that  if  they  argued  in  Englandthat  thèse 
menWw  depnved  of  their  right  of  «sylum,  and  should  be 
e^ra^^^  because  they  committed  a  breach  of  our  neutrality  ;  «r  as 
the  lear^  crown  officer  puts  his  most  extraordinary  proposition-— 
because  thèy  «  cominitted  two  offences,  a  breach  of  our  neutrality 
aùd  another,\Jey  wojald  be  told— if  you  prétend  they  committed 
a  breach  of  nedtrality  they  must  be  committed  for  trial  for  that, 
before  we  can  hejûsa  demand  from  a  foreign  power  for  extradition 
for  any  other  offencèw  And  that  is  British  law,  and  it  is  in  accord- 
ance  with  British  siarit.  and  British  feeling.  That  is  the  law, 
whatever  this  govemmeiàsof  Canada  may  tiiink  on  the  subject. 

JMf",  i)er&».— That  bas  nbdhing  to  do  with  the  case. 

Jfr.  ^Mott.— That  is  exacWmy  opinion.  No  such  principles 
or  sentiment»  bave  had  anythingiadowith  the  conduct  of  this  case. 
But,  wjtuming  to  the  point  itoder>iij»usBion,  I  shall  refer  to  an 
àtttlMwitv  of  flomfriralue;  ï  cîte^tf^«©rtolaû,  299  aar  fbîld^ff 
pages  whore  he  says  :  \  r     -       => 


*v 


r    !• 


\     V 


•'•■'Wi^Tf^n 


•  '     1' 

t 


480 


A 


"  L'illégalité  des  actes  d'hostilités  exercés  dans  les  eaux  terri- 
"  toriales  d'une  jouissance  neutre,  entraîne,  comme  conséquence 
"  directe,  l'aiégahté  des  prises  f^ies  en  dedans  des  Jimites  de  ces 
"  eaux.'*  And  aftcir  oifang  the  passages  firom  Wheaton  already 
referred  to,  expressii^g  the  same  doctrine,  he  adds  :— "  lîtous  adh^ 
"  rons  complètement^'Taetée  doctrine  et  a  cette  junspmdence.  pra- 
"  tiqué.  ♦  •  ♦»»  ■ 

Hère,  of  course,  the  rule  is  asgerted  whîch  my  leamed  friends 
opposite  hâve  contended  for  with  such  yehemence,  namelj,  that 
thé  violation  of  neutral  territory  is  ilIeg?aJ.\But  what  is  the  consé- 
quence ?    I  shaJl  read  this  passage  as  exhibmng  it  : 

"Puisque  la  nullité  des  prises  ainsi  faites  n'est  rien  d'absolu, 
"qu'elle  est  subordonnée  aux  réclamations  de  l'Etat  neutre, 
"  le  fait  est  remis  à  Tappi^ciation  de  cet  Etat.  C'est  à  lui  à 
"juger  s'il  y  à  eu,  ou  s^il  n'^  a  pas  eu,  véritablement  atteinte 
*>  portée  à  sa  scjuveraineté  ;  s'il  doit  à  sa  propre  dignité  et  aux 
"  obligations  d'Wnpartialité  que  lui  impose  sa  qualité  de  neutre,  de 


^    .^ ™^ .  ^^.v,,>.A    U.UUUUC  i^viauiuuuu.        xkuu  nu  page  21^9, 

jn  speakmg  of  the  exercise  by  the  neutral  of  its  right  to  tetwn 
illegally  captared  property  if  foûnd  withm  its  juri8diction,he  says  : 
"  Il  ne  fautas  croire  qu'en  cela  l'Etat  neutre  se  rende  juge  de 
"  la  validité  ou  de  la  nullité  de  la  prise,  au  pomt  de  la  querelle 
"  des  belligéirtuite,  et  des  lois  qu'ils  doivent  observer  dans  leur 
"  guerre  maritiàie.  Cette  question  est  entièrement  hors  de  son 
"  ressort.  Mail  si  des  actes  d'hostilité  ont  eu  lieu  illépijmfement 
"  dans  les  eavtt  qui  sont  soumises  à  sa  souveraineté,  il  est  eia  son 
"  pouvoir  de. faire  cesser  les  effets  de  ces  actes  ;  en  usant  de  ce 
"  pouvoir,  il  ne  fait  que  maintenir  son  droit,  que  prêter  mwn-forte 
"  à  s*  propre  cause."\ 

M.  Hautefeuille  proAulgates  a  similar  doctrine,  Vol.  I,  at  pages 
834,  335.— 

But  I  think  it  is  possible  for  us  to  find  examples  nearer  home,  which 
will  shew  howfar  the  violation  of  neutral  territory  affiscts  the  act  of  one 
belligerent  against  the  other .  We  can  find  récent  mee^edents  both  in 
America  and  in  Éngland,  which  settle  the  questioù  iiï  the  sensé  in 
which  I  understand  it.  We  are  ail  familiar  with  the  fate  of  the 
"  Florida  "  Now,  she  was  captui^d  while  actually  under  orders  as 
to  her  cruise  against  thé  Fédérais,  from  Com.  Barron,  tiië  dirfo- 
matio  agent  of.  the  Confederate.  Sti^tes,  at  Brest.  I  hold  in  my 
hand  the  le^çr^writtei^  «pd  dated  in  Brest,  in  ihich  he  gives^ 
minutiBi  Biaà  cf^tailed  directiç^  to  lieutenant  Commander  Chas.  S. 
Mq||^^  ^^^(Mederatft  States  Navyf^  then  hwBg^OsfrHBfc^ 
Brest,  with  ois  ship  ;  as  to  the  latitudes  he  is  to  cruiM  inj^e  period 


'V^       i 


■^^ 


'iWJ'i^     -t 


t-%.  ^     •'tlh 


•Vljpa-' 


48X 


t 


♦  S  ^     î*  H'  "^  *<^/«°»<4°  >°  one  Piace  or  another,  hie  conduct 
toVârds  neubrata  ;  and  winda  up  by  orderiiig  him,  in  caae  of  doubt 
to  recoUeôt  flfat  his  chlef  dut/is  to  dô  âU  L  ihiùry  hTc^  toté 
enemies  of  hi8  <$ountrj.      •  ••'«' 

•^i?fe  ?*?  ^«*™c*î<>^  »w«ed  to  the  conunander  of  a  Confed- 

^S«^î  Î^2'.?T>  *  neutral  port;  bjr  a  Confoderate 
°J»^  »«eût,  thén  résident  in  a  neùtrâl  port.  «  Thia  steamer  was 
»w  î^  ffle|aUy  ôwtûred  by  thé  United  Status  war  steamer 

tiona  ftom  Com.  Barron  weré  found  on  board  of  hèr.    A  remon- 

'^î- jl^^TSi^^y ^^"^^  *^  *^®  ^"^^  States  Gorem- 
méftt  by  ^e  Bràzflian  Govemiiaént,  coinplaining  of  Ûie  gross 
vidlatfon  of  ber  néutraJity  cômmîtted  by  making  this -capture  ; 
whereupon  a  species  ^  apology  t^fa  made  bv  the  United  Btates 
^J*;f*"^,î*-  The  "FlonV^in'tbe  mean4e,  had  teen  S 
aM  cotdd  topt  be-restored;  but,  her  officèrd  and  Çrew  were 
réleased  and  sent  I  thiric,  to  Mand.  Now,  supposing  It 
to  bta^e  beeh  a  Violation  ôf  ^neutralfty.  for  Com,  Barro^to  Lie 
oMeft  for  a  cruwè  âgâinst  the  commerce  of  the  Unîted  States, 
whfle  he  was  rendent  m  ÎVâncè' ;  which  oocupies  tihe  sapé  position 
that  Englàîid  doés  toward  the^  beffigerents^how  îsTwe^ever 
heard  a  word  of  complaint  againslfc  Mr.  Barron  from  the  Qovém- 

ertmént  thàt  he  sïdtild  be  *^k  oit  ôf  France/'  He  lias  nëverbeén 
interfered.^thforhiSôoAMthis  resi^cl,  ap|  àtittSerin 


that  country.    The  position 

Clay  in  Canada^appeàr  to 

they  did  wai  eialîtly  the  sanve  t! 
of  neutrtdiïj'  in  thé  bne  case, 


Barron  in  France,  and  of  Mr. 
^en  exactly  simîlsr,  and  what 
'.  And  if  there  was'a  Violation 
..  I  liZy  ~  ~'  ""V  ~~"»  ""^^^  *^  ^  *he  oth»;  But  what  is 
more  to  the  putpose  of  this  argumentl|  howis  it  Ûiat  Capt.  Morris 
was  ti;eated  aa  a  belhgerent  ?  My  lea^ed  friends  would  say,  his 
emedition  vas  authorized  in  neutral  téhitoir,  it'procée4ed''from 
neStad-tohitoi^  (thé  «  Florida,-  in  fact,  never  «tw  anV  étheî^ 
S?ilTJ^T^7/*P"^®^  <*^*"  charàé^sMîawfiil  hosàity.  If 
thé  St.  AlbanS  i^ders  lôst  the  chàrii<^r^â!MlKgerent»,  because 
th^,^r  semé  of  aiôm,  at  one  tiine  or  ôlÉièrp^d  throuafc,  or  came 

"^  '  '     ■  '       ■    '     "         e  tftpy  Btarted  from 


rate  croirief  were  not  tréated  aë  pirates, , 
France  and  rébèîvè'd  ttéii:  brdérs  thèi^ t 

•  -^  *^t?ïïl^S*^'^^*'^?TS*®¥^»^'**«<'<^^^^  theiRorida  was  a 
m^2  ^*  *i«'  '^c*^  «»df  <^rt:w  côidd  i»vé^n  tried  at  Bahia 
S£S?féî'^^*t-.^  AMÏfeàm  ^èn«iM,  ^^out  rendérîng  it  necessary 

**?T®?;^*!'  !*^i^^  *!^P^^  ^:^}3  co^ctr^tKit  ttç  iScéptio»: 


■-'  i-i  'M 

ii 
4- 


-:::*« 


^<|. 


♦, 


;l. 


^*^^*."  ^T^'.jtt'  '^-^z  iàT^''r*'^*^s8ET'''^"' *'^ 


■■VT-iy.Y^-":-ff^F^"^^/.'^^- ■ 


482 


Vithin  a  neutral  territory,  of  ordera  for  a  hostile  expédition,  takes 
from  that  expe(Ution  the  oharacter  of  lawful  hoatilitv,  ana  from 
the  parties  engaged  in  it  that  of  belligerents  ;  then  MorriB  and  1^ 
crew  were  as  much  pirates  as  were  1^)002  and  his  party  rohbers. 
And  we  may  go  still  farU^e^.  If  a  capture  dv  a  belligerent  in  neutral 
territory  is  ilwgal  in  the  sensé  in  which  mj  lewmed  frîends  saj  it  is, 
namelv,  sothat  the  beUigerent  charaoter  of  the  captbr  is  destroyed 
— and  so  that  he  betjomes  liable  as  an  ordmaiy  robber  or  pirate 
to  the  municipal  ttibunàb  of  ihe  oountrjr  ;  then  the  oi^tain  and 
ofl^cers  of  the  Wachusett  were  guiltj  ofjnraojr  for  their  capture  of 
the  Florida  in  the  harbour  of  Bahia.  There  is  not  on  record  m  ail 
the  cases  oited  by  my  leamed  friends,  so  grpss  a  breach  of  neutra- 
lity  as  that  committed  by  <àe  Wachusett  ;  nor  is  there  a  case  in  Âe 
books,  wblch  so  complietelr  exhibits  every  élément  of  illegidity  in  its 
most  glaring  form.  And  no  one  dénies  thfit  it  waa' illégal.  But 
would  any  one  in  the  face  of  the  world  hâve  assumed  the  position 
that  because  of  that  illegdity,  the  Wachusett's  people  were  deprived 
of  their  character  as  beUigerents  ?  The  pretension  would  hâve  been 
reoeived  with  ridicule  by  the  civilized  wwld — ànd  yet  it  resta 
{iilly  and  squarely  on  the  proposition  of  law  my  le&med  friends  ire 
insisting  upon.  ' 

But  we  nave  other  cases  in  which  such  questioiis  hâve  corne  up, 
equally  c<mcludTe  in  their  results.  Thiere  is  the  case  of  the  PatHbta, 
in  which  United  States  citizens  were  eoncemed  in  the  yearÎ817. 
This  was  a  vessel  built  in  Hie  United  States,  then  strictly  nedtral, 
with  Ame;ricaa  money — ipanned  by  citizèns  of  a  neutral  state,  and 
neither  she  nor  they  0rer  saw  the  coontiy  on  who^e^^behalf  f^e^  was^ 
cruising  as  a  piivateer,  namely  the  revolted  Spùùsh  Ôolonies.  She~^ 
captured  a  Spanish  vessel  on  uo  high  seas,  and  complubt  was  made 
to  the  American  Goyemme^pt  by  (he  Spanish  IMGniister.  Hère  was  a 
flagrant  case  of  violated  neutr^dity — and  tiie  pensons  engaged  in  it 
were  exactlyin  that  jposition,  which  my  leamed  frienSs  eontend 
wquld  jttstify  Yo!mg*8  extradition.  If  the  doctrine  be  c<»reotIy 
expounded  to  us,  tiiey  were  pirates— ^tiiey  had  no  belligerent  charr 
acter,  for  if  they  ever  poeseèsed  any,  they  Iwit  it  by  iÛegally  ori^  ' 
nating  their  expédition  in  neutral  territoiy.  .  ^j9  correspondence 
18  in  my,hand  and  I  will  read  enough  (^  it  to  shew  its  pui^rt. 

(B«ads  Correspondence  from  New  York  Albion,  Ootober,  1817). 

po  that  itappears  the  American  Government  found  notbing 
which  deprived  tbose  men  of  the  pontion  of  l>9]4gerents,  tiiough  the 
vessel  was  buîlt  in  an  American  port,  was  bwned  by  American 
<»tiK6ns,  aiid  manned  by  an^Ame^can  a>eW'  G^ere  was  no  ohilrge 
of  piracy  made  by  g^àin.  nor  wotJd  the  Umtgd  Steteg  We  listened 
fo sucïï ijînfStânmi    ïhe"pôeition  thej  wF' 


îioeitico  they  wk  wa^ 
thèse  men  corne  witim»  our  jurisdiction,  w0  will 


thïs— if 
them  for 


488 

Nor  was  such  a  preteSaion  urgedlEfâfL  nî  r'T'**",'"' 
^  «aptoÂ  al.  entered  the  v^^e^^le^f^o^  ^t^^ 

the  American  territorv  at  iCvr^^r^fc^v      ^  .   '  -^^^""^  en*«red 
person  or  properfcy  ofl  Fetral  tilIXv  "''•  **?  ??'  ^""«'^«d  t^e 

pnnciple  sthesame  a«  far  m  îi/ lii      j  u       .   '^*°""  'a^^,  thç 
îww  American  territoA— when  «,«V^  .*  *«"  "P™  - 

tô  puniduuent  for  a  bS  o?  ^nSLl^T'?'*  ^^'^^  '^°»«  Niable 
belligerento.-Bri4Sieote&2Â  ^"  k-  '^«^^^^  *^«  °«»«r; 
péril,  as  regard»  thel  oSS  lawg  b»f  îî«  ^  *^  f»^  <»•>  «o  at  their     ^ 
liable  to  bel^ated  l  ^U^^^'^i  X^^T^^^  ^^n^ 
Houae  of  LordflontheOuee^'TXSf^^?'     •   .*ï®  <^«^«*«  »  t^e 

point  ont  that  British  subWte  in  fkT^^    parbcular  pains  to     ' 
oi  thèse  atatesmen  and  ^wv^raw^rA  S^i  And  the  déclarations 

no  tenlMjtment  thev  might  pasT  wouM  h*  «    J°i^ .'  *»''«»  and    , 

,tish^yernm<mtMJU8SinXv^rlll"S?^^i.*ÎJ'  **»«  ^^  \' 
un/îû«  ».,-k  -•  -    "".J^?"/™»  any  pretension.  tfa^t  Dni»at.  ««k:.^i_   '  ■ 


i 


'ià 


m 

i 


4 


434 


Il       li 

'  1 


^^^^ 


ishment  by  us  for  so  doing  ;  and,  if  so,  a  fortiori,  aman  who  was  not 
a  British  aubjpct,  and  in  fact  had  not  even  acquired  a  domicile  hère» 
would  be  entitled  to  aU  the  immunity  'which  his  national  and  belli- 
gerent  character  coald  afiFord  him.    This  point  is  speciaUy  referred 
to  by  Chief  Justice  Cockbum  in  the  Gerity  caae. ,  He  says  :      1 
concur  in  thinking  that  persons  so  jicting,  (mth  the  mtention  of 
acting  on  behalf  of  one  of  the  belligerent  parties),  "  thou^h  not 
subàectg  of  a  belligerent  atcUe,  and  though-theu  may  he  vwlatvng  the 
lam  of  their  oum  countri/,    *   *    *    cannot  be  treated  as  puâtes. 
There  is  no  possibility  of  getting  over  this  express  dictum  ot  the 
Chief  Justice.     For  if  they  are  not  pirates,  they  are  belligerents. 
If  they  were  deprived  of  their  beUigerent  character  by  having  vio- 
lated  the  laws  of  neutrality,  or  by  reason  of  anv  other  fact,  they 
would  be  mère  pirates— or  robbers,  ak  the  case  might  be.    But  Judge 
Cockbum  déclares  they  are  not  pirates  on  that  account.    Ç  the 
Chesapeake  case,  the  same  doctrine  is  laid  down  by  Judge  Kitehie, 
as  I  hâve  shewn  by  the  citations  made  at  an  early  stage  of  my 
argument.    So  your  Honor  perçoives  that  the  Chief  Justice  of  Eng- 
land  in  the  one  case,  and  Judge  Ritchie  in  the  other,  did  not  con- 
sider  that  a  breach  of  neutrality,  though  committed  by  a  neutral; 
though  the  ofifence  in  him  is  more  flagrant  than  m  a  foreigner  ;  and 
thouà  his  committing  it  might  expose  him  to  severe  pumshment  ; 
would  alter  his  position  guoad  a  beUigerent,  so  aa  to  entitle  the 
latter  to  treat  him  aa  a  pirate  or  robber. 

1  will  close  Ûna  branch  of  the  subject,  by  citing  a  few  passage» 
frow  "  Historicus,"  who  treats  this  very  point  m  a  manner  Uiat 
can  leave  no  doubt  of  its  tnie  beariig  upo«  the  nùnd  of  any  one. 

At  page  149  he  says:     "  There  are  n»  questions  which  fct  the 
presentSne  more  deeply  engifp  the  pubKc  mind  than  those  a»  hich 
concem  the  rights  and  duties  of  neutral  govemments,  m  theu-  wla- 
tions  with  belUgerent  povers.  ♦  *  *  Among  thèse  is  the  nature  ot 
the  relative  rights  and  duties  which  may  arise,  as  between  the  re- 
spective parties,#ut  of  a  violation  of  the  nghtsof  neutrals  by^ne 
of  the  belligerents."    Again  at  page  160  :    «  The  elementary  and 
universal  pmciple  which  lies  at  the  root  of  the  whole  question,^» 
the  absolut»  tiAïof  the  neutral  sovereigntv  to  immmuty^  whether  . 
as  regards  its  territory  or  its  prérogatives,  from  the  interférence  ot 
belligerent  opérations  «tf.any  kind.    A  violation  of  tbs  mmmmty 
is  OM  of  th#  cléarest  aad  highest  offences  acwnBt  pubhc  »w.    *or 
one  bellirfîent  to  paM  thnWigh  the  neutral  temtory  withjut  Je^ 
leave  ofits  Sovemgtt—to  oarry  on  hoatde  opérations  T?tthm  the 

'Of"Wair      ^^--*i~B^jaMÊLaaaix.aiïu     luu  ininiiwr  iiisïfïnv™ 


tlierighttefiieot«a8overeign«$i    '^^7^^ '^.^f^,'^' 
fui,  «ad  the  neutral  goverment  u  entided  to  prohibit,  and,  rf  Mcea- 


435  '  .         ' 

sarj,  to  avenge  their  commission  "    Aa,iir.  «^  -..^ 

levy  men  or  to  equip  armam^tewithin  I        î  P,*?® .^^^  k  "  To 

proceedings  are,  iheTlfoLn^^nu"^^     ^^  ^^*''^  ''^  ^*'"-     Such 

inteniationally  asEen  tKff!n^-^  Someiga  and  the  subject, 
neutral.  *  •  *  E ve^Ste  J  ni  .  °^  belligerent  and  the  offended 
protectothernatiÏÏ^  itisTZi^'''  ^  P«>tect  itself,  and  not  to 
n.ent  ha^  consta^r'refoîed  to  en«^M '^^  -ïu**  ^  ^"«««^  ^^^ver^ 
at  the^tiffliti^  of  oîhf .  r        ^*'  ^*''''  ®'*^«'*  P«°al  «ï*  otherwise 

mightbeesg:!^5for£se?uritr'îhé:h-'  -gg-ted  thatTe^' 
m  thèse  matters  is  to  /rS?c^«- J^ï^^^•^*^''^  **»«  «*»*»<«  book 

the  matter  is  clei^  ^«T    a  AimiT  u^  P"«'  l^^ :   '^So  far 
when  we  corne  to  co^f^the  relaS^.,- wl^"'  ^^'  ^  ^^se 
neutral  sovereignty  créâtes^  Ww^f  7i^''^  ^^'^  ^°^*^««  «^  the 
belligerent  who  may  hZ  fce^  ^'.S  the  neutml,  and  the  other 
Uponfthis  point  I  hU  corne  i^^T^jr^^^^^^  V.^»»*  violation, 
curate  talklngand  writing,Thithmkes^îL-    m ""'^T'  ^'^'^  ^^- 
ascertain  and  establish  thé  BtZtut  ?lt  ^«^^^l®  a°d  necessary  to 
proposition  which  I  ^Ih  to  tSeZu^t""^^    '^'  fondamental 
importance  of  which  I  shïïl  S^Hv  Z  ^'^^1'"  ?**«°*'^°'  C*he 
i8  injured  by  the  act  of  t^  oEZWr^  ^  *^?*  *^«  "«^t  which 
neutral  govenmient,rd  not  thW.^^^^^      ^  **^«  "g^t  of  tbe 
im^rtant  conséquence  ithln^nfîn*'  •'*'¥.'  ^fl^^^ent.     The 

neutral.  If  the  neukardl^s  not  .w'!'"'^  ^*  ^"  '"*  ^/  <A* 
right,  the  capture  is  valid  ,L  TjTI  ^  *°.*®'^«'*®  *«  «"««rt  his 
short,  the  capture  i^nlrvoirh^f^^i  m*  °*"''  »>e%erent.  la 
injuréd  partyf  r:  the  Lu  râl  st^''^  .^'  "^^  «^^^^^  «^  *ho 
of  which  eve^rirjuristX^lji^^^^  <*^t«^ct,OB  the  importance 

Such  quotations  as  thèse  explam  theawelves     Th.^  «      * 
text  and  commentary.      Thev  «K«w  T^         J^^  ^^  **  o»c« 
effect,^f  the  viouSSof  our  LéÏ!L^'  JT'^-  '^*'»^°«   ««d 
such  violation  haa  taken  riwe  whthlîl  ^  «'««e  prisoners,  if  .ay 

been  imured  by  theb  «te'  Zt^^rf  •  ^ï^'^  "^•^i!»  ï»»*^ 


^     m 


■   I 


'^■#1 


X  '1 


LW,*ï4.,;:isMi^^: 


Harcourt  tells  us,  no  foreign  power  has  a  nght  to  complain  before 
oar  Court?,  of  acts  afiFecting  our  neutrah  nghts,  then  ail  the 
arguments  based  our  a  breach  of  those  Tights,  ^y  which  the     . 
Fédéral  Counsel  hère  hâve  sought  to  induce  your  Honor  to  extra- 
dite  thèse  men,  must  go  for  nothing.    They  can  receive  no  consi-     , 
deration  when  urged  by  the  représentatives  of  a  foreign  state. 
ïhey  hâve  no  right  to  use  them  ;  they  are  not  injured,  but  we  , 
•our  neutrality  tews  are  "  made  to  protect,  not  them,  bul  us.  ^   Who 
is  it  then  who  argue  for  the  extradition  of  thèse  pnsoners  because 
Ly  hâve  violated  our  neyxttB^^  ?  or  if  they  are  P^f  ^^^l^;",  f  «^* 
phrises,  who  urge  that  the  violation  of  our  nfut^ality  by  the  prh. 
Lers  has  rende'red  them  Uable  to  be  ^^^^^^dited  ?    It  is  our  ow« 
Government  ;  the  Government  of  thi|  country,  m  which  Éhese  men 
hâve  sought  an  asylum  ;  which  sends  its  officiais  hère  to  insist  that 
because  thèse  men  hâve  violated  our  laws,  (as  they  say)  they  are 
to  be  held  liable  to  extradition,  though-otherwise,  as  belhgerente, 
they  would  be  entitled  to  protection.     It  w  the  Crown  officersj-ho 
cornue  hère  pretenàing  a  Wnd  of  impartiality,  f  *«  .«^«ïï  to 
breath  declaring  it  to  be  th^eir  duty  to  use  their  best  endeavomto 
hâve  thèse  men  extradited.     And  m  the  performance  of  that  duty 
it  is  they  who  would  deny  to  them  the  protection  of  their  commis- 
sion ;  who  would  deny  to  them  even  the,  nght  of  exhibitmg  it, 
although  the  Sovereign  they  profess  ter  represent,  has  solemnly  pro- 
claimeîthe  right  of  thèse  men  to  those  çrivUeges.     It  is  in  the 
name  6f  our  Sovereign,  who  recognizes  the  f  ^^^f  "^«"^  «^.^^t""  f 
the  Confederates,  that  your  Honor  js  asked  to  deny  to  thèse  Con- 
federate  soldiers  the  rights  of  belligerents  !    And  it  ifl  m  the  name 
of  that  SoveVeign,  who«  laws  they  say  thèse  men  ^ave  violaWld, 
that  they  ask  you  to  send  them  to  a  foreign  country  to  hâve  that 
violation  avenged .    It  is  the  first  time  that  the  name  of  the  &)vemgn , 
and  the  honor  of  this  country  hâve  been  so  desecrated  and  degraded, 
and  I  fervently  hope  tl^t  it  may  be  the  l^t. 

Iflweire  to  examine  this  case  from  another  point  of  view,  1 

'      beUeVe  Ishould  not  hâve  much  '  difficulty  m  shewmg.  that  the 

'  -"'Treaty  could  not  )»e  held  to  apply  to  thèse  P"80'^«"' '^^'"^ 

them  M  rebels  and  therefore  as  iy)litical  oflfônders  engaged  m  an 

act  of  treason  against  the  sovereiçn  power  of  the  state^      ^-  ^ 

Jlfr.  Dev/in;— They  were  soljiiers  when  they  cottntenced ,  nl)w 

*^*&?!^SoS*'believe  insurrection  and  rébellion  we  usuaJly 
■  regarded  as  poUtical  oflfences.    The  rulç  that  pohtioal  f^f^^.^ 
notmuiaerSl  to  be  oomprlsed  withim  the  proviélons  of  extradition 

^oh  we  rely,  and\as  béen  sustained  by,the  oitetion  of  n^erous 
authorities.    I  wUl  refer  however  to  the  reasons  for  this  exclusion, 


*v 


•  ./ 


.«  .. 


Ë^Mi^yàk-' 


•  ■'■  [  437  ^ 

Ihe  propriety  of  «reemmt»^.  .  ,    jv^°'°"  ""'"'"'y  «tated  thlt 

.|o„^f  L  Jpart,rrir>e^L  Itt^'  S?G°°c"'œ™'- 
thÎ3  theory  as  a  reason  whv  Pvfroriu-^     1    ^J  '  ^^^^  "^es 

to  politic^^ffeXr  He\;f  ^'^"'^  '^^  "«^«•-  ^e  extendfed 

^     "  considered  as  an  interLed^lr^^^^Tlue^         "»aj  be 
.     "  ment  is  indisnosed  fc^  !?^  ,^  ^'  ^^  *J®refore  another  Govern^ 
"  of  this  dest'^on  'î^  ^     "^  ^'"''"^  '^^'^'^  ^  '''  ^th  crimes 
And  he  points  out  that  in^cases  of  «  civil  war  "  nf  »        i 

question."    And  L  ouote  Sl^^r'?"""','  ^*^"^'i  m  the 
and  „mve„ally  stigmatized  .a  degr^S-^d^ïono^d  "'"'""""^ 

ae  charg,  before  granting  ext^ff;  td  t  &r^^f2^''«°.'° 
agrée  so  thorouehiv  with  h\m  fKof  uJ  ^         ,       "^^  author  to 

»lyf"laSr^t:d?r\7;lL^^       ^V^î^^^^^  -^  «^K- 
W«nUfproof,an'^drh:tr.'S"eql^^^ 
13  consistent  with  the  prévention  of  aSe     'Th!?  '^'Z'"*"  ^ 

tem  is,  that  confidence  is  repoL  L  t^fn  J       ''^'"'^  °^  *^«  «7^" 
its  administration  of  criminarUw     tÏ!  1T^  g^^^P^ent  and  h 
ment  ought  to  be  ti.e  chTeV  ^mntee  aX^^^^^^^^^ 
it  claims  any  fugitive  throueh  tCnZ-S  j  ^-T'    ■^^'  ^^^erefore, 
and  gives  a  JeasLbîe  ^f 'that'  ther"  ht  be^'r"^'  ^'^°"«^«' 
gation  by  the  officers  of  police  and  tll  f„n!l        -     P"'^'"  '°^®«*i- 
prelimmarj  stages  of  jurSe  iÎ!ul?f^^^^^ 
to  the  conclusion  thatC  iZ'  ?n  1      t  ^^'^  investigation  had  led^ 
charged  against  h^  iî^t  Ch^  T.??)?"  ".«"i^>^  "^  ^'^^  «^«««e 
place,  uporproof  oTidentiW^t      V^^  extradition  should  take 

Testigatirn,  Brh'a:Vtl^L:LtuK;ke^^^^^^^^^     ^"^  ^"»  - 
of  a  prisoner  in  this  countrv  '  "  ®  eommitment 


I  ': 


m:-.. 


-^ 


t  aJu'^-aj'^  1  i^    E 


488 


X 


«flfect,  is  paralleled  by  the  e8tabU8|\ed  practice  of  this  and  other  coun- 
triea  with  respect  to  the  ôivil  la#."  ■ 

"  In  fact,"  he  says  :  "  the  rule,  thus  clearly  stated^  bas  been 
allowed  in  practice  wherever  qUeptiona  under  the  Treaty  arose.'' 

I  hâve  quoted  this  at  length,  otherwise  it  woùld  appear  to  be 
incredible,  that  the  "  rule  thus  clearly  stated,"  which  "  bas  been 
foUowed  m  practice  wherever  questions  under  the  Treaty  arose 
— is  actually  the  statement  madoby  the  author,  of  what  the  law  and 
practice  are  »w<,^the  same  paragraph  containing  a  directly  contrary 
statement,  which  he  déclares  represents  what  the  law  and  practice 
are.  This  explicit  description,  which  Mr.  Johnson  cites  as  exhibiting 
in  the  words  of*ewis  the  condition  of  the  law,ever  since  the  Treaty  ^ 
came  into  force,  hàppens  to  be  a  description  of  what  Sir  G.  C.  Lewis 
thought  ought  to  be  the  law,  but  which  he  clearly  states  in  the  same 
paragraph  is  not  the  law.    The  passage  cited  by  Mr.  Johnson  la 
the  latter  half  of  a  paragraph,  which,  in  the  previous  portion  of  it, 
refers  io  the  Ashburton  Treaty,  and  explicitly  finds  fault  withthe 
necessity  for  p^f  under  that  Treaty,  and  for  an  hivestigation 
before  a  magiétrate  by  méans  of  witnesses  examined  on  the  spot. 
And  after  pointing  out  ail  that  is  requisite  under  its  termSj  and 
declarmg  that  the  process  is  both  costly  and  difficult,  he  goes  on 
to  shew  how  he  considered  Buch  a  law  ought  to  be  framed,  and  tt 
is  ihi»  expresnon  of  hit  idea  of  how  the  law  should  be  changea, 
that  Mr.  Johnson  cites  with  such  approbation,  and  with  the  autho- 
^ty  of  Lewis'  name,  as  a  clear  statement  of  what  the  law  actually  is  ! 
So  extraordinary  a  perversion  of  authority  is  not  easily  accounted 

for!  ..  -  A 

But  retui^ning  to  the  distinction  between  ordinary  enmes  and 
those  of  a  poîitical  character,— as  for  instance,  those  arising  out  of 
a  civil  war, — I  hâve  been  very  forcibly  struck  with  the  illustration 
of  it  by  Mr.  Lord,  a  distinguished  advocate  in  New  York,  who 
who  was  one  of  the  Counsel  for  the  defence  in  the  Savannah  case. 
He  argues  that  to  constitute  a  crime  against  municipal  law,  an  act 
must  be  such  an  one  as  everybody.condemns,  and  is  recognized  by 
ail  the  world  as  an  offence  against  thé  law  of  nature, — an  offence 
which  would  be  pùnished  equally  at  the  place  where  the  crime  was 
committed,  and  where  the  party  was  tried  for  it.  And  he  points 
out  that  it  would  be  shooking  to  the  comroon  sensé  of  mankind  to 
hold  that  an  brganization  of  ten  millions  of  people  could  not  justify 
€ven  the  killing  of  a  chicken  without  a  charge  of  petty  larceny  ; 
that  for  every  shot  fired  and  man  killed  thwe  could  be  a  trial  for 
murder,  &c.,  &c.  (Reads  from  Savannah  çasê,  pp.  121  et  teg.) 
— Atï^ iiî  fimt  thêro  can  bo  no  doubt  but  that  tht^  prison^rfhan^  ragawi- 
ed  throughout  the  United  States  as  poîitical  offenders.  The  évidence 
of  record  shows  that  they  were  such,  if  offetklers  at  ail.    But  there  is 


■/ 


tr . 


,tl- 


T 


'     -."  .439 

-   ■        ■  "^^  .  ^  • 

proclamât  on  of  (Jeneral  Dix,  they  were  apoken  of  aa  »  rebels  "— 
aa  "rebel  maraudera  :»   and  oLrs  we^  given  to  ahcS  the^        ' 
do^  wherever  found.     The  placard  issued  by  the  St   AlbZ 
banka,  désignâtes  them  in  a  aiiiilar  manner.    Eveir  newanatlrT     ^ 
ont  ^tt  '"'  T'y/«<ï«-l  organ  hère,  maSe  tlScK 
rpltLS*?;^'  f  '^'"P'^*  f  Sainst,  them.     Mr.  Sumner,  Z 

Ce  ÎÏTÎ^  '^r  y.T  ^^^*^'*'   attributed  fhe  greatest 

wS  tt«  n  •^"^°l^^''  '^^^^  P^"*^^'»!  ^i«^«'  l^ad  laid  the  plot 
the  S<^t!/"^-'7  ^^  '^7^'^  ^"*-  The  univei^al  clamor  in 
neutrShv    re5T*  v"'i  °°^*^y'   ^^   ^^    a"eged    breach    of 

if  n?itLl!fv  ;/  ^'^  "'^^  *^**  character,  it  waa  no  violation 
ot  neutraJity—it  waa  a  common  robbeiy.  Ordinàrv  robbera  dn 
no    nae  to  the  dignity  of  violators  of  neukïï  riSta     And  it 

Cnl  ^uP®^"^??"  *^  «®°^  *o  Richmond  for  évidence,  His 
Excellency  the  Président  of  the  United  States,  himaelf  chaiSJ 

preas  of  the  Uruted  States,  herM^erals,  her  senators,  even  her 
S^tW  r*  *"^'  exfecutivmcer  déclare  it  to  b'e  S  one 
voice— that  thèse  men  are  rebels,  who,  on  the  19th  of  October  last 

owed  Zf^"^  "^  *?  ^*  '^  ^«^^"'^^  '^  *h«  State  to  S  rey 
tZif^fT^  'li  "-^Pf  *H'y  ««bmit  that^r  Honor  must  hZ 
Uon  Sr^?  T}^gJ-«f«ge>ere  from  thelèqsequènces  of  kS- 
lion,theExtraditio»Treatydoesnotapply.  .  ^m 

iufl£*  S  îf'^^^d.frifd  Mr.  Johnson,  fearing^^perhapslith 
justice,  that  it  may  be  found  at  least  doubtful  that  any  caae  îias 
Sty^'X  *«^i.*l^«  PriBoners,on  the  charge  of  "h  Jving  been 
guilty  of  robbery  ^thm  the  meaning  of  the  Treaty:  reprJaches 
^ZZf  *^K  '^r'^T'''''  character  of  ihe  defence  th7y  T^up 
SÏS/''^'/  IfT^^g  tfa«°^  that  they  should  submit  £ 
«^vs^«  wtr^'^.t'^"  "^^^  byem,neous"';àtiocination.  He' 
S«  ^!  '^'"îu  **^,*^'''  """^  "  absurd^md  iUogical  in  the  ex- 
SlTv  •  J  ^^.?®y  ^'^^  *"  «»^««"«^*  defence  ;  are  able  to  jus- 
tify  thy  ma  bjLthe  anthority  of  thoir  QoYCH>meatrtba<.tiirir— 


^^ 


iser 


«omtry,  y,l  they  do  no»  wW.  to  go  to  the  ÛmtSd  States  S 


1     Ji 


.r\ 


*.-> 


Bore  or  a(m^  upon 
States 'Coart(ir,j 


\\ 


IQ  ^ 

é  tried  !'?  And  th^  other  CounseJ'îji^e  touc 
iiiiûe  théine,  extolling  the  juji^^lof  tho    ^  ^ 
'  àssuring  your  Honor  of  th©  perfeçt  impartMjjty  ^ 
■  ■  '     Now,  rwî>qi[d  like  t«|lBp^ 

jeall/  expect  in  the  Feder 
'  United  States  hav©  Jong  1 
iparti|Ji%fi)r  the  learnfa^  ^ 

à  sensé  and  vigor  of  thêirad^ 
-,^_  >l7  still  deserve  the  samje  high 
[jnatters  unaffected  by  polij^ttl  «on- 
„  ™  j^àoned  if  in  tho§e  respects,  flam  Içd 
tÊ^^ihBwne  is  not  without  stain.    l^t ;witb- 
out  câètin^  <jppa  thêjn  any  îniputation  of  any  kmd,  it  is  |^W)able 
that  they. can/ioé  l»irly  try  the  deifence  set  up  by  the  pi^^ers. 
In  otbMM^ïbi^s,  catàd  Aè  prisoners'  defence  be  recognized  aljgobd 
in  iaw  ®f  e  4e  Pedertkl  Courts,  supposing  it  to  be  fully  projed  ? 
Mr.  Càrtei^iô  fumished  uswiththeïneansof  answeringthisque^n. 
îThé  authoi^s  he  cited  to  phpw  tha!  we  could  not  recognize  Liëiit. 
oujftg's  commission,  tell  us,  that  it  belongs  alone  ta  the  exec^ve 
■ovftrnment  of  a  coui^try  to  décide  whether  or  no  a  State  «ail 
^  recognized  as  a  belligerènt,  or  as  a  sovereign  State.    Well, 
tl*  executive  Government  of  the  Uiiited  States  "bave  not  recognized 
the  Southern  States,  either  as  a  b^lligerent  or  sovereign  State  ;  and 
coVsequently  the  FedeVal  Courts  cannot  recognizè^  their  commis- 
giorfg,  or  consider  the  acts  of  their  soldiers  as  belligerent  acts.   My 
leamed  friend,Mr.  Carter,  wift  not  deny  the  force  of  this argument; 
for  as  hè  cpntends  that  your  Honor  cannot  look'  at  this  comHiis- 
ipon,  though  England  bas  recognized  the  belligerent  character  of 
tlS^'Sputhem  States  ;  he  ^ust  join  me  m  this  argument  and  say,  a 
Jf'ortiori,  the  Fédéral  Courte  cannot  look  at  this  commission,  bécause 
(^  the  Fédéral  Government  bas  not  so  recognized  the  South.    This  is 
^one  çf  the  instances  in  which  the  "  plain,'^  "  incontrovertible,^' 
^|ind  "  obvious"  propositions  of  mv  leamed  friends  a*«^^'^ip- 
rocally  rather  injurions;  and  are  likely  to  ehare  the  fate 
elaborate  but  fragile  productions,  -when  brôught  in  j^à^ 
with  each  othêc!    I^iCuf^»  i^  fact;  be  estaolished  "^""^ 
belliigerency,  and  of  ^^Hwsation  by  instructif^is  frt 
rate  Govetnment,  woJ^ft  be  rece^ved  as  a  lawful 
any  tribunal  fin  thé  UÎmea  Stat^  ;  and  that  proof 
utterly  unavkiling.    Ifsuch  a  defence  were  set  up 
chargwwhich  may  be  made  to  arise  out  of  the  attaek   , 
a  Judge  in  Âe  United  States  woùld  hold  it  iâsufficient 
would  go  oha.r|rft  th«B  jury. 


iSfeï-, 


Mr.  Devlin.—'Royf  do  you  know  that  ? 


•J      ■  > 


*0^ 


''<r: 


'é 


441 

Jgelson  of  New  York,  m  a  simiïar  ca^e.    On  the  trial  fo?  piracy  of 

Pe  officers  and  crew  of  the  schooner  Savannah,^a  privateer  crais- 

^V  <  !?!  ^^^''  *  ^®**®'"  ^^  °^*'*q'^«  f«>°»  Président  Davis.-the  same 

iw^fJ^^  1:2!:'  "'^  T""  "^'^  ^^°«  they  must  rely  to  sàve  . 
them  from  Cwn»»tion  and  exécution  as  robbers.  In  chareing  the 
jury,  as  to  the  vdidity^of  that  defence,  Judge  Nelson  says  : 
^^  We  hâve  said  that,  in  a  state  of  War  between  two  nations,  the 
-  u  ^f  mmissioa  to  private  armed  vessel»  from  either  of  the  bellige- 
"•Po'îS.'^îîiÏJ  ^  '*®*^'''^'  '^«Po^ding  to'the  law  of  nations,  in  the 
«  tK  î^u  ®  T"?^'  ^S^'^'^  *  ^^^g®  of  ro^bery  or  piracy  on 
"  Soh  A''?^  °^  which  they  niight  be  guilty  in  the  absence  of 
,,  juch  authon^  ;  and  under  this  principle  it  bas  been  insiàted,  by 
"  riy®?   «T^*  ^'^  .*^®  prisoners,  that  the  comtoissionlf  the 

"  S  5  f  Savannah,  whichliaa  been  given^  évidence,  affords 
"  rnnJ  T  i.  ?  support  of  this  position,  îlls  claimed  that  the 
^^  Confederate  States  hâve  thrown  off  tlje  power  and  authority  of 
^^  the  gênerai  Govemment;  hâve  erected  a  new  and  indepenâent 
«  <^ovemment  in  its  plade,  and  bave  maintained  it  against  the  whole 
^^  nulitary  and  naval  power  of  the  former  ;  that  it  is  a  Govemment, 
^^  at  least  rfe  facto,  and  entitled  to  the  rights  and  privUeges  that 
«  Jf wng  to  «  soverei^  apd  indepgndent  nation.  *  *  ♦  But  the 
u  -An,^  °?*  ^^?™  **  pmnent  or  material,  to  enter  into  this 
wide  field  of  mquiry.  ïhis  branch  of  the  defence  involves  consi- 
derations  that  do'  not  bebng  to  the  Courts  of  this  country.     It 

«  TiT.i  *^^?"°^''^*'""  ""^  ^^^^  P'^^"«'  politisai  questions,, 
^  which  bôlong  to  departments  of  our  Govemment  that  bave  charge 
of  our  foreign  relations-the  législative  and  executive  depart- 
ments;  and,  wÈen  decided  by  ^W*  the  Court  foUows  the  déci- 
sion ;  ^à  un^^^^^f^g^.,j^^^  recognized  the  new 
^^^overnmmt,  timmôfthl  nation  ^mot.  Until  this  recogni- 
tion  of  the  WGovemment,  thé^CeWare  obliged  to  regard 
the  ancien^étate  of  things  as  remaining  uncbanged.  *  *  *.  And 
if  this  18  Ihl  ryle  of  thel-èderal  Courts,  ^  m  ca«e  of  a  revp% 
and  érection  of  a  new  Govermnent,  asit  respects  foreigrf  natîoS,    ' 

applmble  when  the^  question  ailses  in  re- 


fh  more  iè  the  ride  appll 


<,'' 


"  m^h  mon 

:"  s^t  to  a  revolt  and  the  érection  of  a  neuiGpv^mmt^^mn  the 
hmtts,  Undugainst  the  authority,  V  the  ^ovemmenfUnder  which 
we  are  enffaged  in  administeringXihe  léws.    Afid.itx  this  «on- 
«  jection,  it  18  proper^  say  that,  aà;^he  Confed^te  States  must 
"  y»*  be  recopiirêd^gtft  poUtical  dQiar^omZ^^-mf^'^^^ 
"  Govemment,  i^p**"^-  *^  '  ^^-      '    n---^      »«  » 

"  country  ;  n^melyjl 


%., 


^ 


be  recognized  by  theACcMiirts  et  %^ 
*JatiVe  aiid  executive  aepartments,  wà 


»,'  ï' 


\ 


•■  I*..    / 


\l-  :i 


.1 


i 
'  1 


*!> 


I 


ffl  r 


it 


r^.. 


\ 


"\ 


442 


*'  must  look  to  the  acts'of  thèse  departmenfcs  as  évidence  of  the  fact. 
*•  ïhe  act  SaMs)  act  of  the  nation  through  her  constitutional  public 

,  **  auAorities."  1 

And  when  the  good  feelings  of  tlje  jury,  revolting  at  this,  per- 
hapa  strictly  le^,  doctripe,  led  them  to  seek  further  instruction  as 
to  whether,  if  «hey  believed  the  accused  were  ôcting  in  good  fwth  as 
belligerents,  they  mi^t  not  take  that  fact  mto  considération — they 
were  told  that  they  could  not. 

I.think  my  leamed  frienèvrill  admit  that  this  shews  that  I  hâve  ^ 
not  spoken  witKout  authority-^-when  I  stated  the  kihd  of  law  that 
would  be  admmistered  to  thèse  men  ;  and  in.thus  pointing  it  out  I 
do  not  mean  to  assert  that  Judge  Nelson's  lawi^as  bad  \vn\  from 
his  point  of  view.  He  has  the  réputation  of  bemg  a  leamed,  high 
minded,  and  upright  Judge — anÀ  very  probably  was  perfectly  right 
in  Isw  in  declarinè  himself  unable  to  allow  any  weight  to  a  plea  of 
belligere^ncy,  until  his'Govemment  should  hâve  recogmajsd  the  state 
of  var.  'But  ail  this  only  the  more  forcibly  impreases  upon  us  the 
frightftd  mockery,  the  ghastly  irony  of  the  proffers  of  a  fair  trial 
to  thèse  prisoners.  The  trial  will  be  fair  and  lawful  according  to  the 
law  of  the  Fédéral  States  : — ^but  that  law  ignores  the  defence  which 
those  who  promise  a  '^fair  trial  "  know  is  the  only  one  to  be  set 
up.  And  while  they  talk  of  the  "  fair  trial?  of  that  issue^sthey 
know  that  it  has  been  long  ago  decided  against  the  prisoners  ^ahd 
never  can  be  «ven  presented  for  such  trial.  They  tell  the  prisoners 
that  it  is  "  illogical  and  absurd  "  of  them,  to  object  to  go  over  to  the 
Fédéral  States  to  hâve  their  defence  of  belligeùrency  tried— though 
they  know,  not  Only  that  that  defence  cannot  be  tried  there  at  all-r- 
but  that  it  is  the  only  country  in  the  world  where  it  would  not  be  a 

fHdl  and  complète  "defence  tç  the  charge  of  robbery.  My  leamed 
friend  blandly  remonstrates'with  thepriwniBrs  for  tiieir  unreasonable 
conduot,  in  not  at  once  submitting  themselveà  to  the  impartial  and 
patemsd  tribunals  of  the  Uni^d  States— when  in  fact  those  are  the 
only  tribunaÈt  in  the  world  which  would  entirely  disregard— aà  an 
abeolute  nullity  in  law,— the  only  defence  they  possess  !  I  vei^t»ire 
to  say  that  epithets  much  more  severe  than  those  my  leamed  fnend 
has  osed,  are  jostly  due  either  to-him,  or  to  our  patemal  (^ovemment 
whose  mouthpiece  he  is — for  placing  before  yourHonçt,  and  bçfore^ 
this  coustry,  an  argument  at  once  so  faliie,  so  treacherous,  and  se 
inhuman. 

But  even  if  it  were  posable  to  get  such  a  décision  as  to  the  law, 
as  wowld  admit  évidence  for  the  prisoners,  how  are  the  witnesses  to 
be  got  before  the  Court  ?  Will  esoaped  prisoaer  Adjutant  General 
Withers  venture  hiioself  m  the  hands  of  the  Fe^erah;.?  Will  Mr. 
Stone  and  Mr.  Béttes^orth  go  to  St.  Albàni  to  Wl  the»  Chicago 
-experieiwea?    WiU  Mr.  Cleary  place  himself  in  a^w  England 


r 


us 

jitness  box  for  examination  as  to  the  secrets  of  the  départaient  of 
State  in  Richmond  ?  Reallj,  the  more  I  examine  thig  notion  of  a 
fair  toal  for  thèse  men  in  the  Northern  States,  the  more  hoUow  an^ 
répulsive  it  appears.        ' 

T  IJ^Ï'J^l  '*  P'^*^®  y''"''  ^<'"<>'''  *^«*  ^^^  ^«T  great  importance  -. 
I  attach  to  this  case,  not  solely  in  the  interest  of  the  prisonèrs,  but 
also  as  involving  important  national  considérations,  haa  led  me  into 
a  more  lengthy  discussion  of  it  than  was  fequired  either  by  its  in- 
tmsic  difficulty,  or  for  the  full  de.velopmént  of  our  pretensiong.  My 
object  hM  been,  as  I  stated  in  the  first  instance,  to  seek  to  discoveV 
troiii  the  évidence  of  record  the  whole  of  the  facts  as  they  really 
occurred  ;  and  then,  leaving  the  propositions  of  law  on  which  we 
relied  m  the  first  instance,  to  rest  on  the  arguments  and  authorities 
ot  my  learned  and  able  colleagues,  to  foUow  the  Counsel  on  the 

Îw7k-  !i^"'u^\*^^'';  ^'•g"'»«°t«  in  m^J  to  those  propositions. 

Ihat  this  duty  bas  been  long  and  arduoGs,  necessarily  follbws  from 
the  tact,  that  dunng  the  great^r  part  of  three  days,  the  ingenuity 
/  ftid  research  of  four  of  the  leading  Counsel  at  this  bar,  hafe  been 
employed  in  heaping  argument  upon  argument,  and  authority  upon 
authonty  in  support  of  the  application  for  extradition,  and  in  oppo- 
sition to  the  pretensions  of  the  defence.    And  so  arduous  bas  it 
Deen,  tùat  with  the  most  sincère  conviction  that  we  are  right,  and 
the  most  eamest  endeavor  to  show  that  that  conviction  is  justified, 
1  am  not  satisfied  that  I  hâve  not  fallen  far  short  of  wh#  I  should 
hâve  said  m  support  of  it.    But  before  I  leave  the  caseinyour 
Oionor  s  hands,  and  even  at  this  lato  hour,  I  must  entreat  your 
attonbon  to  some  considérations  which  may  well  incUhe  you  to  the 
«de  of  mercy,  if  the  balance  of  justice  be  in  any  respect  doubtful, 
Ihe  View  I  désire  to  submit  is  one  allied  to,  yet  différent' from, 
the  merely  légal  and  technical  arguments  whi«h  may  be  used  with 
regard  tothi8ca«e.    ^^ontend  that  we  havi^a  right  to  look  at  the 
spint  of  the  Treaty,  and  of  the  statutory  enactments  based  upon  it, 
.--and  that  we  cannot  forget,  and  hâve  no  right  to  overlook,  the 
changes  which  war  bas  produced  in  the  States  with  which  we  liade 
T^^  m-.r^^^  '"  J^"""  -i:ite*'**"«  ^'*^  *ba*  State.     «  War,"  ^ys 
«H*^     ™*''^'  ?«ff«ct^haiige  in  the  mutuel  relations  of  ail 

Btetes  ;  more  immCKl^Pf  ^nd  directly  in^  the  relations  of  the   ' 
"  ÏÏS[*''^/o w*'*^-!^!^'  5  but  mediately  and  indirectly  in  the 

relatâtes  of  States  w«îch  take  ao  part  in  the  contest."    And 
what  enormous  and  radical  changes  bave  tfaus  been  eflected  since 


Pjssage  of  the  As^urton  Treaty  !     When  that  Treaty  was 
pasped,  we  and  they  w^n  a  state  of  perfect  peace.    Nft  prospect 
JWM  farther  from  that  ji|at.  prMprûua,MMLL>ppyiaan^,  W 


:i'^' 
\ 


1: 


theMtred,flie  bioodshedT^^  rm 

désolation^,  that  hâve  spread  tl)|m8elve(»  over  its  faire» 


■  0^  »  ^ 


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Peace  tben  presented  her  most  Bmi)^|^ttMît,  and  no  cloud  fore- 

shadowed  her  departufe.     NofjiiwPflipil1hroogitiout4he  length 

and^  breadth  of  the  land — à  giganîic  and  sangttinary  struggle, 

in,wluch  brother  is  arrayed  againsfr  brother, -  and  father  against 

^  And  it  ia  a  strife  exhibiting  war  in  its  most  répulsive 

res  ;  war  charaçterized  by  the  most  insatiable  rapacity— ^the 

jnMl  unbounded  dévastation — the  most  lavish  pouring  out  of  trea- 

gamand  of  blood,  that  the  earth  has  witnessed  for  âges.     War  is 

wàys  a  frightful  calamity,  civil  war  peculiarly  so  ;  but  history 

■^ÎVes  no  account  of  any  war  in  which  such  bitter  hatred,  such 

.    intense  hostility,  hâve  been  developed.     And  not  only  men  who 

,      hâve  Tisheà.   and  taken  life,  whose    passions  '  are   innamed,  and 

whose  tbirst  of  blood  ia  awajcenedr— but  thoae  who  uéùaHy  soften 

the  aspertties,  even  of  ordinary  lif^  now  join  in  the  gênerai  crï  for 

confiscation  and  destruction.    Révérend  divines,  young  andjEned 

females,  vie  with  each  other  in  the  fièrent  and  most  demomacal 

^^)^^  demandil^  ravage  and  extermination. 

,-,-J,    jfow  thé  ïreaty  waa  made  to  promote   the  transmission  for 
^  .  trial  frbm  onl^)art  of  this  continent  to  another,  of  persons  who 
had  committed  tsrimes  of  the  darker  class,  respecting  the  char- 
acter  of  which  North  and  Swith  agreed  with  ourselves  ;   criiniiçl 
which  Vermont  and  Geo^a  mike  prohibitftd,  and  which  it  was 
impossible    alike    for  tjhiem,  affd  for  any  qther  civilized    State 
or  people,  tio.aâj^ve  oftjr  even  to  tolerate.  ^There  was^no  inten- 
tion on  the  part^wfche  Cfnted  States,  when  ^^e  Treaty  was^piassed, 
to  stipulatei  for^the  extradition  for  triai  as  criminalainr Vermont, 
of  persons  who-4verftua|garded  in  Çreorgia  as  darting  and  devoted 
,1  patriots  ;  ajid  fow^iPwhich  Geoiiii^ns  hëld  âJ^be  prwseworthy, 
if  not  heroib.   TBe  Worthem  an4^'<ifhern^§t"ate8  were  a^e  pairies, 
to  that  treaiy  through  their  geù'eral  GoHÉ|Bient  ;  they  aglfed  tç  |eci- 
procal  extradition  for  thf  Bam^ffé^Mw>4apd  the  offences^lÈat  so 
^; .  formed  the  subject  màt^r  o^jÉb  and  our  agr«ement,  wei*e  oÉènces 
V    which  they  iand  we  united  in^HIrdiy  with  abhorrence,  and  as  de- 
w j.  sèriçbg  '  of  extraOrdtftary  ei^pon9%r  their  punishment,  in  the 
"^^  iil^'rest  of  Our  respective  coi^unities.     Now,  what  is  the  position 
of  thèse  meti,  and  the  light  in  which  their  acts.are  regarded  by  the 
parties  to  ^at  treaty  l    The  Northern  States  demand  them  as 
robbers.    Tlfie/  press  this  demand  with  unparalleled  véhémence  ; 
and  80  violeii|b  and  unmeasured  are  they  in  thehr  wrath,  that  their 
Législature,  their  press,  and  even  their  pulpits,  resound  with  the 
opprobrious  éj^ithets  which  are  heaped  upon  the  prisoners.    The 
Southern  States,  on  ihe  other  hand,  dehberatelv  authorized  and 
'direoted  fee  sets  thos  denounced.    They  regard  those  who  parti- 
cipitedin  them  as  g^dlont  and^ttêvôtedinen, irfaaTÎBkedtfaeîriiT/ 


for  their  country.  Their  highest  executive  officers  join  in  hurrying 


"^•: 


445  '  - 

s 

-^  the  papers  and  documents  which  are  to  aid  in  their  defence. 
No  pains,  ho  labor,  no  risk,  no  money,  are  spared  in  contributinjr  to 
their  aid  and  comfott,  in  the  critical  position  in  which  they  now 
8ta^.     In  one  word,  ohe  section  of  the  nation  with  which  we 

.  madé^the  Ashburton  TreaW  denounceè  them  as  robbers,  while  the 
otber  extols  them  as  patrtots.  Twenty  mUlions  of  men  under 
an  organized  Government,  demand  them  |p  félons  ;  bul'  ten  mil- 
hons,  under  another  organized  government,  Qxi^ting  de  facto, 
claim  them  as  meritorious  soldiers.  And  it  wa's  with  thèse  'tWrty 
milhonsw  men,  then  cônstituting-but  one  community,  that  we 
made  our  Treaty.  Surely  if  tliere  be  ail  thèse  internai  diflFerehces 
of  opinion  betweèn  the  parties  contracting  with  ns,  it  is  right  thàt 
we  should  carefully  consider  what  we  are  abouf  to  do.  It  is  nô 
^^^?'WiJ^^  ^®^°"  sinning  against  the  law  of  nature,  and  agaihst 

4oubts^ 
solfier 
whose  cri 
pute  as  e: 
parties  : 


gener^  ;  respeqjjing  the  ^nonnity  of  whose  crime  no  one 

rhom  we  are  asked  to  deliver'over  for  triftl.    It  is  the" 

le  of  thèse  i«^)^s,  |her  ênemy  of  the  other  ;  respecting 

"'\lity  thére  is  «S^cte  a  4>|ference  and  as  fierce  a  dis- 

ibn  any  other  qi^tion  deba,ted  between  thèse  waçring 

irthe  man  whom  we  are  called  to  deliver  over  to  one 


portion  of  the  na^kagamst  the  will  of  the  other,. under  a  treatv 
we  made  with  bothlpen  united  !  "^ 

Thèse  seem  totpe  to  be  subjects  for  your  Honor's  grave  consid- 
ération. They  are  suggestive  of  much  more  that  \might  be  said, 
and  much  more  forcibly  said,  upon  the  anomalous  state  of  things 
m  which  your  Honnir  is  now  called  upon  to  act.  But- the  con- 
sidérations which  arise  out  of  them,  personal  to  the  prisoners, 
we  among  the  most  startling.    Thèse  men  are  demanded  for  trial. 

lu        ^^  ^^^"'  ^"**'  ^^^  '     ^^  ^*  ^^^  ^^^^  a  trial  as  it 
woàld  be\  presumed  an  ordinary  criminal  would  hâve  in  ordinary 
times— -when  justice  is  ^dministered  in  the  United  States  by  Judges 
second  to  none  in  leaming  and  impartiality  ;— by  juries  composed 
of  educated  and  iî»i*pendent  men  ;  and  when  the  raies  by  which 
the^  are  guided,  are,yjie  humane  and  just  principles  upon  which 
theijr  and  our  cnminaï  laws  are  alike  based  ?    Your  Honor  knows, 
every  one  knows,.  that  noauch  trial  awaits  thèse  prisoners.    It  is    / 
before  Judges  like  Judge  Nelson  ;  who  must  déclare  their  defence   / 
inadmiBsible  m  law  ;  who  must  décide  that  the  sovereign  State  of  / 
which  ^ey  acknowledge  themselves  the  subjects,  is  not  entitled  to' 
theur  allegiance  ;  that  the  Président  who  exercises  the  civil  power 
of  that  State,  and  the  gênerai  who  commands  its  armies,  are  félons 
hke  themselves  ;  that  the  commission  under  which  their  oflScers, 

from  the  highest  to  the  lowest  hâve  fought.  and  hâve  won  the  ad- 

"ffiiration  of  the  world,  aire  inere  wAuthorised  licenses  to  rob 
and  plunder— which  can  serve  no  purpose  but  to  prove  more  çcjn- 


>    m 


««> 


,^^ 


m 


■^Hh 


i  - 


■''/p^f  '^'/  i-y^-y:'^  >i-rfr:-  Hf 


446 


(f.    I 


clusively,  their  liability  to  a  death  oi)  the  gallows:  it  U  befor» 
Jttdges  who  rule  thus,  that  tBeir  trial  must  be  had.  Aud  befôre' 
what  oountry  will  they  seek  their  deliverance  ?  It  is  from  among^i 
the  men  whoae  daily  literatare  is  the  New  York  Herald~whose 
sabbath  instmotion  is  from  tibe  tipe  of  tiie  Bev.  Heztry  Ward 
Beecher — whose  evening  relaxations  are  the  lectures  pf  Miss  Anna 
Dickinson,  that  the  jury  whioh  tries  them  is  to  be  selepted  ^--^those 
who  daily,  hoarly,  readand  hear  with  approbation,  tiieir  ^atest,  heai 
and  bravest,  denounced  in  the  foulest  ma  ttiost  opprobnoiu  ternàs — 
are  tojudge  of  their  actions  ; — those  who  eeho  the  fervent  aspirations 
of  the  apostles  and  messengers  c^  Divine  meroy  and  Divine  justice 
hère  <m  earth,  for  tbe  destruction  of  thèse  men  and  tiieir  fellow» 
hère,  and  for  their  damnation  hereafler,  are  to  l)e  the  arbiters  of 
their  fate  ; — those  who  listen  to  and  appland  a  fragile  girl,  whUe 
she  outrages  her  sex,  her  âge,  and  humanity  itself,  by  fràntic 
exhortations  to  wholesale  slaughter  aod  unive^sal  dévastation; 
will  fill  the  roll,  firom  which  will  be  taken  the  twelve  méh  on  whose 
breath  will  hang  the  lives  of  thèse  prisonera^ — Aud  the  defence  which 
they  will  be  expected  to  investigate,  to  weigh,  and  on  whioh  they  will 
hâve  tarender  their  verdict,  wUl  actually  be  the  assertion  by  the  pri- 
soners  of  what  suoh  a  Court  and  jury  are  bouud  by  the  law,  and 
constrained  by  their  éducation,  their  associations,  even  their  reUg. 
ious  teachîng,  to  look  upon«s  a  sure  passport  to  a  deserved  death  ; 
as  the  very  head  and  front  of  their  offen^g. 

Is  it  to  a  tribunal  thos  composed  that  thèse  men  are  to  be  en- 
trusted  ?  Is  it  from  stioh  Juages  and  such  juries  that  thèse  mén 
are  to  receive  a  fairy  cahn  and  impartial  taial  ?  Is  it  before  them 
that  eveiy  ciroumstûuse  is  to  reoeive  a  fuU,  unbiassed,  and  dispae- 
sionate  considération  ;  as  it  would  do  before  youi'  Honor  presiding 
over  a  Court  of  tim  country  :  or  as  it  wotild  hâve  d(me  before  Judge 
lîelson,  before  this  unhappy  strife  commenced  ?  I  implore  your 
HoBor  weU  :^Mi  maturely  to  weigh  ^  thèse  things.  I  cannot  and 
will  not  beheve  it  fiosable  thait  suohH|.j3ruel  mjustice  wilj^  be  done 
to  tiiese  unfortonate  men — as  to  p^^Qn  ,o^  Iheir  deliver^  to  their 
enemies,  with  the  oertainty  of  an'^iîplompoiiip  and  degradmg  death. 
I  fedl  that  my  advooaoy  m  ikéi  cause'msJ^een  inauffioienl^  thongh 
I  hâve  devofod  to  it  my  best  énergies  ;  but  I  know  tiukt  ^y  défi- 
ciencies  wiU  be  snppUed  by  yonr  Honor's  full  appreoiatidn  of  the 
whol»  case.  And  m  tbat  ooinfidenbe  I  lelive  it  in  your  hands,  cer- 
tun  tfaafc  your  Honor's  deoiaiooi  will  be  such,  is  yM  be  diotated  by 
jostioe,  teoifered  w^  meroy.  ,. 


,>  //  / 


/,  y 


è- 


% 


,./».'/ 


(  jiftJw 


''   I    ï  .1 


■'*  '  :  J  '■:"-,'.ls 


\ 


447 


^   _    ,    ■  Wbdkbsday,  2Ôth  Marob,  1S66. 

iim%th,  J.~In  thifl  ca«e,  whiôh  ia   an  a|»plicatioii  on  behalf  of 
the  Amencân  GoTemment  for  the  extradition  of  Bennett  H. 
Young  and  others,  I  am  now  abont  to  pronounce  ray  iadgment  ; 
and  ia  doing  so  will  firet  briefly  state  the  facte,  a«  they  appear 
to  be^MToved  in  évidence  beTore  bm.    In  preBenting-tKeinjgenerS 
ally,  fwiUiout  enterir^  at  tiiis  moment  înto  partioulaiB,  or  into 
thoae  «pecial  points  in  th^  évidence,  which  bave  relation  to  the 
particulâr  objeotioni  that  bave  beei|  raiaed;  I  wonW'gt^te  tbat 
on  the  19th  of  October  last^  Bennett  H.  Young  and  bis  asao- 
ciatef,  being  in  the  town  of  St.  Albana,  St^te  ©f  Vermont,  rose, 
upon  the  people  ;  took  poeseenon  df  thebanks  ;  pUlagéd  them  ;  set- 
fire  or  attempted  to  set  fire  to  eeveral  boildings  ;  toolc  and  beld  a 
numhfiiï  of  (^e  citiaena  as  priaoners,  doring  the  occupation  of  the 
town  r  seized  upon  bbrses  for  themaelTes  ;  and  were,  finaUy,  fired 
upon  and  driVen  out  of  the  town  by  the  people  ;  exohanging  sbots 
with  them,  to  an  extent  which  does  not  cleîarly  anpear  by  the  evi- 
dence--after  having  been  apparently  in  Bome  de^ee  m  pesses- 
sion  of  the  town  for  about  bàlf  an  hour.     One  man  was  «ïot  in 
the  gtreet,  but  under  what  circumstancee  does  not'  appear.     On 
thïs  oocanion,  a  man  n«med  Breek  came  into  the  bank,  upon  bis 
own^buàness,  and  was  aeiied  upon,  threatened  with  violence,  and 
thereby  waa  obliged  to  rorrender  the  money  he  hàd  in  bis  pos- 
segaion.    Thfe  ia  the  act  ohirgçd  aa  robbeiy  for  which  extradi- 
tion la  demanded.     The  applicants  say,  that  their  oaae  reata  on 
mumcipal  law  ;  they  allège  that  Young  and  hîa  associâtes  h(kve 
>comimtted,  aocording  to  the  law  of  the  Bta^  of  Vermont,  the  crime 
of  robbery  ;  that  this  offence  waa  committed  withm  thwr  juriadic- 
tion,  and  ia  provided  ^r  by  the  Treaty;'and  that  ail  that  ia 
reqmred  for  tbe  extradition  of  the  aceused  ia,  to  ahow  reaaonablè 
proof  that  the  act  waa  one  of  robbery,  wliieh,  they  contend,  they 
hâve  done.   In  gênerai  terma,  Aen,  %Pi#^e  the  grounda  on  which 
the  appheanta  claim  from  the  GovMa^ftCiJf  thia  country,  the  aur- 
render  of  theae  partiea  for  trial,  //m  |iBnor  détails  of  the  facts, 
aa  proved,  having  référence  to  particifar» pointa  in  the  caae,  will' 
be  touched  on  when  thoae  particulâr  pointa  are  diaeuaeed. 
/  Now,  cm  the  other  hand,  the  priaonera  atate,  that  the  act  of 
plundering  the  banks  was  nbt  robbery;  Mt  ît  waa  devoid  of 
thoae  éléments,  which  in  law  oonstitute  that  offimce;  that  the 
ammm  fermai  waa  wanting;   and  that  Ihe  aet  ehargèd  was 
a  mère  iaeident  of  the  attaok  on  the  town  of  St.  Albans:  that 
on  the  19th  October  lasl,  Bennett  H.  Young  waa  an  oiBcer  in  the 
o*t«^  of  the  so-oafled  C«MifedeTate  Statoskrhd^f^e^^Bk  «f  fim^^ 


Béttténânt,  tinder  «n  appointaient.  »ade  by  Mr.  Davis,  of  the  lôth 
Jtoie  last,  ae  signified  to  Mr.  Yoang  by  Mr.  Seddqn,  th»  SeGretàrT- 


II 


%( 


m 


t  ' 


448 


\ 


of  War  ;  that  the  other  prisoners  were  soldiers  in  that  army,  acting 
under'his  orders  ;  and  that  in  the  attack  on  St.  Albans,  they 
assumed,  and  declared  themselves,  to  bè  acting  as  8uch.,officer  and 
soldiers  on  behalf  of  the  Confederate  States  and  by  their  orders  ^i 
alleging  that  they  were  detailed  for  the  purpose,  as  a  measure  of  ^ 
retaliation  for  the  mode  in  which,  they  asserted,  the  war  had  been 
carried  on  by  the  United  States  in  the  South.  ïhafc,  in  fact,  the 
commission  of, the  so-calied  raid  was  authorized  by  their  Govern- 
ment, and  that,  therefore,  it  falls  outside  the  category  of  cases  pro- 
vided  for  in  the  Treaty,  so  that  they  cannot  be  extraditêd  for  it, 
because  it  wants  the  essential  éléments  chàraeterizing  the  offence 
for  which  underthe  name  of  robbery  extradition  is  promised.  Now, 
the  statement  of  thèse  facfs  and  pretensioM^  in  a  gênerai  w^y, 
makes  it  quite  gvident,  that  the  questions^  law,  whiçh  arise  on  a 
their  examination  are  in  reality  few  in  number.  On  thë  one  hand, 
there  is  the  claim  for  extradition,  in  support  of  jyhich  the  municipal 
law  is  invoked,  on  the  ground  that  it  recognizea  the  act  as"  ôhe'^É 
robbery.  On  the  other,  there  is  the  pretension  of  the  prisoners, 
who  say,  we  are  not  amenable  to  municipal  la^iw  ;  because  though 
we  committed  an, act  which  falls  within  the  définition  o£,this  par-, 
ticular  offence;  we  did  so  as  belligerents,  under  circumstancés 
^hich  remove  it  from  the  puryiew  of  municipal  law  ;  and  that 
require  it  t»  be  judged  by  the  rules  of  international  law^and  by 
the  laws  of  war.  That,  in  fact,  tKe  St.  Albans  raid  wâs  under- 
taken  m  obédience  to  the  coramands  aAi orders  of^our  Government; 
that  the  plunder  of  Breck  w^  merelyan  incident  to  that  rai^;  and 
that,  therefore,  it  ceases  to  fall  within  municipal  jcMkdiction.  To  this 
the  applîçants  say,  ip  the  first  place,  that  tfae  magistrate  who  ex- 
amines iûîp  a  case  of  this  kind  has  no  authority  whatever  to  try  such 
question^  a§  those  raised  by  the  prisoners  ;  and  they  take  issue 
with  them  also  upon  ail  the- allégations  of  fact  involved  in  their 
defeiice,  and  upon  their  application  under  the  provision  of  the 
Treaty.  ,  ■     ■ 

There  is  no  dbubt  whjUever,  if  the  case  stood  èxactiy  as'  it  is 
presented  by  th^  examination  of  the  witnesses  for  the  prosecutiona, 
that  it  would  fall  undér  the  provisions  of  miouoipal  law  ;  for  the  flîcts 
proved  by  thém,  bo  far  as  thejP  stand  unexpifùned  or  uncontradlcted 
by  other  facts,  présent  a  clefr  case  for  extradition.  But  contrary 
to  this  vie^  of  the-law  contendedJbr  on  behalf  of  the  fîpeUants,  I 
hold  that  I  am  bound  to  considerwhether  the  prisonerp  trij^  j-eally 
robbers  ;  or,  as  thêy  c'ontend,  sbldiers  and  eubjects  of  a  beBij»rent, 
engaged  in  a  hostile  expédition  against  their  enemyj-uiiiâ^^e  au- 
thority  and  on  behalf  of  their  Govemment  ;  ànd  whethAw  jjP^ft  gat  » 
cEarged  was  à  mère  incident  to  that  hostile  expédition.**  Xj5335iough 
I  have  no  right  to  try  this  case,  it  is  my  duty  to  investi^jite  it,  sO  83 


-  t> 


% 


•'î^' 


449 


".  I 


t  " 


jî 


to  ascertain  whether  or  nô  the  offence  committed  falls  within  the  prp- 
visioM  of  the  Treaty,  before  I  commit  thèse  men  for  extradition^ 
NotwithstMiding  the  pretenaiop^herefore,  that'Ihave  no  authority, 
as  committing  ma^strat^tcj  receiite  évidence  on  thèse  points  ;  and 
that  they  are  questions  entireljfô^  ^e  considération  of  a  jury  of 
the  country  where  the  offisnce  vras  committed,  I  hâve  admitted  évi- 
dence not,  technically  speaking,  for  the  defençe  ;  because  there  is 
no  such  thing  as  a  trial  before  an  examining  ina^trate  ;  but  évi- 
dence as  a  coi-oner  might  hâve  admitt^  it,  who  mugt  receive  whàt- 
ever  ifCpointéd  ont  as  being  calculâtes  to  hâve  a  bearing  on  the 
ehqoiry  in  which  he  is  engaged.  Onrthè>first  pomt,  therefore, 
wUch  présents  itself,  namely,  whether  on  an  applic.ation  for  extra- 
diticm  trader  the  statute  in  that  behalf,a  judge  can  recùve  évidence 
tending  fully  to  develop  the  facts  resp^cting  the  offenoe  charged, 
whether  offered  on  the  one  side  or  the  orther,  I  entertain  n©  doubt, 
aai  I  cwisîdepij^hat  the  affirmative  is  fuUy  sustained  by  authority. 

'  ïlle^ae  of  the  Gerity,  decided  by  the  Chief  Justice  and  a  full 
ben<i^  Judges  in  England,  has  been  brought  forward  to  ahew  that 

■^  the  cpntraiy  vièw  is  the  correct  one.  It  ht»  been  stated  that  Chief  " 
J^«>è  Coâlburi^declared,  that  testimony  ten^g'  to  remove  the 
iai^tation  of  cri««  from  the  prisoners,  was  for  the  jury  alone.  I 
dQ  Bot  jiew  his  diotum  ip  that  light  ;  on  the  contrary,  I  think  his 
** — ^^age  demonstriites,  beyond  the  shadow  of  a  doubt,  that  his 
awas  tàe  ûtlier  way.  What  he  really  did  hold  was,  that 
pfcere  wer<i,çiere  presumpticMis  of  a  fact,  but  no  positivç 
ccof  that  fiict,  it  was  the  duty  of  "the  Judge  to  ciftmmit  Âe 
parties  for  trial  ;  'and  to  leave  the  value  of  those  presumptions 
to  b<î  estimated  by  a  jury.  This  is  really  the  j^trine  declared 
in  the  judgment  of  the  CSiief  Justice,  and  coi^rred  in  by  his 
associai»».  Butis  itj,to  be  inferred  from  this,iifchat  if  proof  had 
been  o£fei:ed  of  tbe  fact,  which  then  rested  onl^  on  a  presump- 
tion— and;  a  very  feeble  one— -that  such  proof  wfipcdd  hâve  been 
referred  16  a  jury  ?  I  think  the  reverse  ia  the  correct  mference 
from  the'îaagûage  of  the  Chief  Justice.  The  whole  of  the  judges 
iiflèr|Rplly  a%iit  4lbAt  i£  those  men  had~prodacèd  a  commission 
fromJefl^rson  Davil^  tiiey  would  hâve  acknowledged  it  as  sufficifent 
to  establiph- their-bélligeren^  character.  C»n  it  1^  stated  that 
ai^liiing  appears  in  that  caée  to  show,  that  if  «Te'rpan  «nd  his 
associais' had>  presented  a  commission  to  the  JUidgei,  they  would 
Imve  «iwed  te  receive  it,  and  ^  give  it  it«  tull  e%t,  while 
tiiev  Wmitted  its  #ifficiencvas  a  justification?,  TheW^ifl'-'no 
socn  opinion  tobe'drawn  from  the  wpoHT;  not^'in  f%ct,  could 
be    held    bv   thia    Htain}         --     .         .^ 


/ 


okar  th«it  they  aokao^edge,  as  regiuds  thosip  men,  that  the 
prodnotbn  of  a  ocMpminion  would  hav^tvttifiedtheir  act  under 


DD 


'A\ 


M':  - 

'  Â 

'"i 


'^^  •»; 


■<,  .■ 


'  & 

. 'Il 


i' 


460  V     / 

the  law  of  nations,  and  that  thereby  they  would  hâve  been  deprired 
of  ail  jurisdictipn  over  tiiem.  The  argument  of  Mr.  James,  which 
waa  concurred  in  by  the  Chief  Justice  was,  that  the  fact  that  persons 
acted  on  behalf  of  one  of  tiie  belligerents,  was  recognized  by  the 

.  la^  of  nations  as  &justificati(m,  and  the  possession  of  a  commis- 
sion is  indicated  as  a  circumstance  in  the  présence  of  which  they 
could  never  order  the  prisoners  to  be  extradited.  They  were 
finaily  discharged  on  another  point,  though  held  liable  to  be  com- 

•  '  mitted  upon  this  one  ;  but  that  did  not  affect  the  position  lÛl  the 

J<udges  took  uponi  the  question  now  under  considération  ;  and  it  is 

impossible  to  deny  tiie  logical  corréctness  of  their  views.    How 

absurd  it  would  be  to  say,  Siat  if  the  commission  existed  and  were 

y    y  acted  upon  on  the  occasion  complained  of,  there  would  be  no  crime 

'    under  the  law  of  nations,  and  th^erefore  no  authority  whatèyer  to 
iw^t  ;  and  at  the  samè  time  to  affirm  that  under  our  own  law 
/^i       thecommisfflon  could  not  be  looked  at  at  ail.  A  proposition  of  this 
kind,  if  attempted  to  be  urged  before  that  eminent  tribunal,  would 
never  in  my  humble  judgment  hâve  received  their  sanction,  for  it 
wonld  involve  à  total  disregard  of  the  law  of  nations  ;  and  would 
pernrit  of  the  violation  of  the  implied  restriction  of  the  Treaty  stipu-  , 
lations  to  certain  crimes,  by  allowing  it  ta  operate  in  aU  cases 
which  could  colorably  be  brought  within  its  protons.    And  to 
refer  such  a  point  to  a  jury,  would  be  in  effect  to  hpld  that  the 
Courts  of  the  party  demandmg  the  extradition,  would  be  the  only 
tribunal  compétent  to  décide  whether  the  proof  offered  in  support 
of  that  demand  was  sufficient  or  not.     Sir  (ïeorge  Comewell  Lewis 
says,  at  p.  65  :  "  The  assumption  upon  which  a  Treaty  of  extradi- 
tion rests  is,  that  a  civilized  System  of  criminal  law  is  executed  with 
faimess,  and  that  the  cases  claimed  for  surrend^r  are  those  (rf 
offenders  really  suspected  of  the  crimes  with  which  they  are 
charged.    If  a  dishonest  and  colourable  use  were  made  of  such  a 
Treaty  ;  if,  for  example,  a  political  refugee  were  charged  with  one 
of  the  enumerated  oflfences,  for  the  purpose  of  bringing  him  within 
the  power  of  his  govemment,  and  if  when  he  had  been  deUvered 
up'he  was  punîshed  for  a  political  crime,  it  is  clear  that  a  System 
of  'extradition  could  hot  be  maintained  with  a  govemment  which 
'  so  perverted  the  treatv.'    Now,  who  iS  to  détermine  whether  the 
demand  is  founded  on  the  pretence  hère  set  forth,  is  it  the  ma^ 
trate  before  whom  the  examination  takes  place,^or  is  it  to  be  dçcid-  ' 
ed  when  thé  person  is  extradited  by  the  govemment  itself  whièh 
asked  for  the  extradition?'    Ithink  this  requires  no  answer.    I 
fully  ajn«e  with  the  remark  of  Mr.  Justice  Crompton  in  the  Gerity 
oftHft-    He  says;  "  Itis  said  that  we  must  trust  to  the  discrétion  of 


♦'  the  other  Btate,lihat  it  will  not  dëmànd  extradition  in  casés  wEôrë" 
"  it  is  unreasonable  to  do  so.    But  that  is  ve0  dangerous  dootaine, 


/f 


451 

"  to  which  I  cannot  subscribe  ;  and  I  think  it  is  far  more  wise  to 
"  construe  the  act,  which  is  peremptory  in  its  terms,  in  such  a 
"  way,  if  we  can,  as  to  exclude  cases  in  which  the  demand  would  be 
"  unreasonable."     (Law  Reprter,  p.  611.) 

Chief  Justice  Cockburn  said — "As  to  the  other  question,  whether 
stipposmgpiracy  ^wre  gentium  to  be  within  this  act,  there  was  suffi- 
cientjonwï<f/a«e  évidence  of  it,  I  àgree  in  every  thmg  Mr.  James 
said,  as  to  acts  donc  with  the  intention  of  acting  on  behalf  of  one  of 
the  belligerent  parties  ;  and  I  concur  in  thinking^hat  persons  so 
acting,  thoUgh  not  subjects  <tf  a  belligerent  state,  and  though  they 
may  be  violating  the'  Jaws  of  their  own  country,  (e.  g.  the  laws 
of  neutrality),  and  may  even  be  subjeçt  to  be  deàlt  with,  by  the 
state  ag9.inst  whom  they  thus  act,  with  a  rigor  which  Wp- 
pily  is  unknpwn,  among  civilized  nations  in  modem  warfare  ; 
yet,  if  the  acts  were  not  done  with  a  piratical  intent,  but 
with  m  honest  intention  to  assist  one  of  the  belligerents,  auch 
persons  cannot  ^be  treated  àa  pirates.  But  then,  it  is  not  beoause 
they  assume  the  cÈaracter  of  belligerents,  that  they  can  thereby 
protect  themselves  from  the  conséquences  of  acts  really  piratibal. 
Now,  heire,  it  is  true  that  the  prisoners  at  the  time  sud  they  were 
acting  on  behalf  of  the  Confederates,  dnd  that,  w|  areiold,  ia  in 
fact  équivalent  to  hoistmg  the  Confederate  flag.  Eut  thin,  ph-ates 
sometimes  hoist  the  flag  of  a  nation  in  brder  to  concéal  their  real 
Character.  No  doubt  prima  fade  the  act  of  aei^ng  the  veœel, 
sa^ng  at  the  satne  time  that  it  is  seized  for  the  Co^ederates,  may 
raise  a  presumption  of  such  an  intention,  but  tlifen  ail  the  circum- 
starices  mvipt  be  looked  at  to  see  if  the  act  was  reaUy  donc  pira- 
tically,  which  would  bè  for  a  jury."  That  is,  as  I  read  tljfe  judgipent, 
the  mère  presumption  of  facts  which  alone  existed  in  that  cause. 
Bot  if  a  commission  had  been  produced,  il  would  no  longer  hâve 
been  a  presumption,  bu^  a  fact,  and  as  in  the  Case  of  ^e  Boanoke 
at  Bermuda,  would  no  doubt  hâve  been  considered  sufficient. 

It,i8  because  the  Ghief  Justice  says  that  io  his  opinion  this  is  a  ques- 
tion for  a  jury,  that  the  whole  of  the  fallacious  argument  has  been 
used^  that  ail  cases  of,the  same  nature  should  go  to  a  jury  ;««^en  m 
fîct  what  was  meant  was,  that  as  the  case  for  S»e  defence  rested  on 
a  meve  presumption,  and  not  on  positive  évidence  ;  such  as  a  com- 
mission ;  thereforé  it  was  pr(^r  to  send  it  to  a  iury.  In  foct,  when 
the  Jud|M  heard  tiiat  the  act  was  declared  to  hâve  beeij^dbne  in 
the  interést  of  the  Oonfederate  Oovemment,  the  Chi^  Justice 
treated  that  déclaration,  naked  and  unsupporteni  as  it  was,  aa.rai»- 
ing  a  question  deserving  of  grave  ccmsideration. 

SiippoBJng,  %heUfore,  that  the  proof  way  i^onolnHJYft  th*t  tliAft^ 
mén  acted  under^î^ie  auythorityif  their  Goveniment,  what  eîllb^^ 
would  that  fact  hâve,  upon  the  ohirg^  tii^t  they  hâve  oflfendedf 


û*> 


r. 


\4 


'■"*.■ 


ss 


y 


452 


rV> 


m 
ë    ' 


4    £^ 


against  tbe  municipal  law  of  the  other  belligerent  ?  Before  dis-  « 
cuMng  this  question  of  law,  howeVer,  it  may  be  well  to  examine 
into  the  nature  of  the  fiKits  proved  in  this  connection,  and  to  see 
ho|r  far  they  fikve  establiiE^ed  the  àllegationB  upon  winch  this  part 
of  the  prisoners'  case  rests. 

There  bas  been  a  considérable  amount  of, évidence  adduced  in 
this  cause  bearing  upon  the  position  of  the-  prisoners  as  Confeder- 
ates,  and  in  support  of  théir  assertiçns  that  tibey  ^elonged  to  the 
Confederate  army.  ïhis  évidence  is  both  documentary  and  paroi, 
and  appears  to  my  mind  oonolusive.  Withoutçntering- m  détail 
upon  the  objections  taken  to  a  part  of  ii,  1?hich  appëar  to  tee  to  rest 
upon  insuffîcient  groui}ds,  and  not  to  bear  in  aujr  respect  the 
test  even  of  a  supeHicial  examination,  I  hold  that  it  is  proved  by 
that  évidence,  that  on  the  19th  pctober  last  Bennetf  H.  Young 
was  an  officer  of  the  army  of  the  so^called  Confederate  Sj;ates  as 
First  Lieutenant,  under  comnyssion  from  Mr.  Davis  of  16th  June, 
1864  ;  that  Young-receiveid  written  instructions  from  ^.  ^eddon, 
Secretary  of  War  of  the  Confederate  States,  authbrizing  him 
to  organize  in  the  territory  of  the  enemy,  for  specid  service,  a 
Company  of  twenj^  soldiers  then  beyond  the  lines  ;  to  prt)ceed  to 
the  Bri^ish  Provinces  to  report  toMeaa^.  Thompson  and  Clay, 
Confederate  agents  beref,  or  to  Mr.  Clay  alone;  to  exécute  such 
enterprises  as  should  be  ontrusted  t^  him;  to  violate  no  local 
law,  and  to  obey  implicitlv  their  instructions  ;  that  large  numbers 
of  Confederates  coUeeted  at  Chici^o  in  August  last  to  relieve 
the  prisoners  at  Camb  Douglaâ'^  that  the  St.  Albans  expédition 
was  organiaed  thére  bv  Yoi^ng  lifom  amongObe  Confederates, 
under  bis  instructicms  from  y^  Govemment,  which  he  exÛbited 
tiien,  and  as  a  commissioned  dBcer;  that  he  then  reported  bis 
doings  to  Mr.  0.  C.  Clay,  who  gave  him  a  mémorandum  approv- 
ing  them,  aad  also  approving-ana  authorising  the  expédition  against 
St.  Albans;  that  the  otber  prisoners  were  sdidiers  in  the  Confed- 
erate armv,  acting  under  Yôung's  orders,  and  that  in  the  attack  on 
the  town  he  and  his  partv  aasumed,  and  dedared  themselves  to  be, 
acting  as  8ub-officM>  and  soîdiers,  on  behalf  of  tiie  Confederate 
States,  alle^ng  tiiat  they  were  detMieci  for  the  purpose,  to  retdia- 
tion  for  similar  aots  c<^umt(ed  by  the  l'ederi^  in  the  Sou^em 
Staties;— 4hese  faots  I,ooàd4er  and  hM  to  be  estabiished  beyond 
cohtroversy  by  the  ovideiioe  of  N«Of#  Vwy  slig^  attempts  were 
made  b^  the  Ceuasel'foff  ilie  apfiq^trto  asiaii  é&er  the  tetter  of 
ai^intm^it  or  coiiBiMnQn,  w  m»  uistnieti(Mas  given,  and  I  fm  of 
3pmiou  l^t  tùere  waf  •»  pmsMÎ  for  their  ol^tk»iis. 

The  QxmÀéaimA  jfêmJÊm  tkVÊ^néik  fn  thin  atate  of  &ietB.«.in- 

.'!"'.'."'^TL  T*  '  '  il 'il.  '"  Vf  VT' ?     t 


volves  an  eaouuy  ii^i<Klii 

«mtTMt,  a»  &t#MD  gngtKMl  iad|P  Uwted  UMm,  oontûiied  in 


ttMfMMàMm  of  the  jaMiùi 


j    t 


k*- 


.^1 


; ..  .*  -- 


■M*^- 


«'.  .  ^ 


f^' 


,.f.  • 


,>v 


':l 


458 


the  Treatjr,«nd  as  expounded  by  intertiational  law,— and  it  will  be  in- 
structive m  this  connection  to  examine  a  case  of  a  nature  not  veiy  dis- 
similar  in  principlej-perii'aipSjto  the  one  now  before  us,  which  engaged 
the  attention  of  the  two  nations  between  whom  was  made  this  Treaty 
of  Extradition.  The  case  I  refer  to  is  that  of  the  Caroline.  That 
case,  as  properly  understood,  is  one  that  settles,  beyond  ail  dispute, 
the  question  of  govemmental  responsibility  as  distinguished  from 
individual  responsibility.  The  circumstances  under  which  the 
United  States  territory  was  then  invaded,  the  subséquent  arreôt  of 
McLeod,  his  détention  for  trial  for  the  crime  of  murder,  aûd  the 
ustification  of  that  détention  by  Judge  Cowen,  gave  rise  to^  long 
controversy.  Judge  Cowen  held,  that  because  England  and  the 
United  States  were  at  peace,  the  act  of  McLeod  was  incapable  of 
being  justified  by  any  principles  of  international  law^and  thatthere- 

fore  lie  adoption  and  aasnmption  of  the  act  by  Great  Britain 

which  lyas  certainly  no  more  than  équivalent  to  the  previous  author- 
izatioD  of  the  act  by  Great  Britain,  could  not  relieve  McLeod  from 
his  responsibility  to  the  ordmjiry  municipal  law  of  the  vstate 
where  the  offence  had  been  eomnHtted.  Other  Judges  of  the^Aner- 
içan  courts,  howéver,  refused  to  concur  in  the  opinion  of  ^ge 
Cowen.  His  observations  and  judgment  were  reviewed  by  Judge 
Talmadge,  who^howed,  beyond  the  possibility  of  dispute,  that  the 
views  of  Judge  Cowen  were  ahogether  errwieous  and  unsifctàined  by 
the  principles  of  international  law  ;  and  they  bave  been  n^tived  by 
every  jurist  of  eminence  in  the  United  Sti>tes.  But  not  only  was  that 
case  examined  closely  by  thèse  great  Judges;  but  it  was  observed 
aad  commented  on  by  great  stetesmen  ;  and  the  principles  contended 
for  by  Jfldge  Talmadge  hâve  bèen  adopted  and  recognized  univer- 
eally  ;  somuch  so,  as,to  bé  taught  in  .the  schooîs  as  indisputable 
ruleô  of  mtemational  law.  If  any  doubt  cbuld  be  thrown  on  the 
jflfinciple  contended  for  in  that  caseby  the  British  Government,  how. 
was  it  that  none  of  thèse  Judœes,  nor  even  the  astut©  and  logical 
miadof.  Webster  himself,  «euld  suggest  om  ?  .Mr.  Webster  raised 
evei*y  point  Wffich  the  ingenuity  of  mail  cpuld  suggest,  but  Mr.  Fox 
woilld  never  allow  Jjim  to  escape  fi-om  this  position  ;  "  the  moment 
tiuTact  was  asaume^y  the  Goyemrtient  jou  çeased  to  hâve  any 
ript  to  examine  into  it  at  ail,  upon  a  charge  against  the  individual. 
It  a  taken  out  of  tté  jurisdiction  of  theiftiminal  uuuptu.^M'asIiTOS 
the  position  taken  by  Mr.  Fox,  ànd  hç  demanded  the  immédiate 
iïah«Bder  of  McLesd,  then  held  for  tiçial  for  Murdér  in  the  State  of 
Ne*  York.  Ithe  casé  was  an  jàxtreme  o|ie,  as  it  jras  alJeged  ttiat 
thé  kiMing  of  Durfee  took  place  on  Americita  soif  after.the  Gjiro- 
/tn«  had  bean  mnéà.  and  was  not  an  inci^^t,  or  rath^r  wa.«  n^M- 


i 


incident,  to  HJe  capture  of  the  v<i$e1 


nwtÊmm  incident,  to  the  capture  of  the  v«l|$e1.      -  '        'fl 

Th«  0rand  Jury  foiind  an  indiotroent  against  iïoLeod,  and  lie 


'n^] 


%' 


kA  -i     't  /#»'»  ' 


.  '  -■■ 

M 

">■• 

-/* 

-•«T 

«f^ 

•*n 

a 

'  ■■■■f: 

>:,  ^^  ,-•' 

-          -          >^.      . 

4'       ' 

g 

\      *' 

,4      -à»       ,< 

MÈÊÈm 

9  ■[ 

■      4  ^ 

.'■Sk"    •■■V 


/ 


^ 


J^ 


\  '  454  ,  .         ■*■ 

f  was  placèd  on  his  trial  for  committing  murder.  NoW,  if  this  wery 
-  '  vaa  act  "woich  'would  ^ave  fallen  within  the  purview  of  ôrdinare 
*  criinijial  jurisprudence,  surely  Mr.  Webster  would  hâve  said — the  açt 
,;^<^hië  man  did  is  one  for  wbich  he  must  be  made  amenable  to  the  ordi- 
Wy^ary  tribunals  of  the  country,  and  he  must  be  tried  in  thei  ysual  form. 
Sùrely  if  this  proposition  could  hâve  been  asserted  in  s^  case,  ^is 
was  one  in  which  it  could  plausibly  hâve  been  suggestef.  But  he 
^d  not  atteùipt  anything  of  the  kind  ;  for  he  admitted  the  prta^ 
ciple  that  the  moment  the  act  was  established  to  be  the  act  of -1li|^ 
Grovemment,  the  individual  committing  it  ceased  to  be  indiv^uaffjjF 
responsible,  and  thereby  ceased  to  be  amenable  to  the  ordinary 
courts,  and  could  not  properly  be  tried  before  them.  j&ut,  contrary 
to  the  opinions  of  Judge  Talmadge,  of  Mr.  Webster,  and  of  many 
other  Judges  and  jurisconsults  \)e<bre  and  since,  Judge  Cowen 
denied  this  doctrine  ;  and  as  no  statutory  law  then  existed  covering 
such  cases,  McLeod  was  tried  before  the  State  Court  for  murder,  in 
défiance  of  the  opinions  of  the  statesmen^  representing  the  gênerai 
Government.  This  difficulty  was  "Overcome  by  subséquent  légis- 
lation, but  in  the  meantime  the  trial  proceeded; — and  the  acq;uittaL 
of  McLèod  prevented  difficulties  between  the  two  Goverhments 
which  might  otherwidë  hâve  assumed  grave  proportions.  The  prin- 
cipal point  in  the  McLeod  case,  therefore,  is  the  récognition  of  the 
important  principle,  that  the  moment  an  act  becomes  a  national  act, 
ail  private  jurisoiotion  over  it  as  regards  individual  rraponsibilify, 
ceases.  This  ground  must  be  kept  in  view  in  a  case  like  the  one 
now  before  us  ;  for  without  a  clear  understanding  of  it,  nations 
would  confound  international  law  and  municipal  law  in  an  inex- 
tricable manner.  It  would  involve  an  absurdi^,  to  say  that  there 
can  be  iwo  such  jurisdictions  of  an  opposite  nature  over  the  same 
offence,  as  the  gênerai  law  of  nations  apd  the  municipal  or  local  law 
of  individual  nations.  It  stands  as  a  self-evident  proposition  that 
there  cannot  be,  in  the  nati^re  of  things,  two  such  concurrent 
jurisdictions  over  tiie  same  act.  The  offense  must  be  cognizable  by 
the  law  of  nations  or  by  the  çpunicipal  law  ;  it  cannot  be  cognizable 
by  both.  '      > 

■Ând  this  rule  cannot  be  evaded  by  selecting  from  an  act  refer- 
abl^  for  its  approval  or  ce/isure  only  to  the  law  of  nations,  a  portion 
of,  or  an  incident  in,  such  act;  and  then  attempting  to  subject 
such  portiop,  or  such  incident,  to  trial  by  a  muaioijÂl  tiibond.  ^he 
wb^e  of  the  détails  and  incidents  whi(;h,  in  the  aggragate,  constitute 
'a  national,  or  hostile  act,  must  be  taken  together.  It  is  the  hostile  act 
or  opération  which  I  must  look  at,  and  not  each  minute  détail  of  that 
act.  To  permit  any  departure  from  this  rôle  wonld  involve  flie  gravest 


rel 


conséquences:  as  iDr 

in  neutiral  territory  after  an  unsuccessful  bsMile,  could  be  hel^  respon- 


■i 


■;  n    ../;.; 


■/..-■ 


»/ 


k    ■ 


■  ,>^n 


•■     Il   ■ 


r*^ibfefoi:  eVçjgr  iadividual  aet  committetî  i^,  ÎBcidenti  to  the  fight, 
éitWer  bèfcre  ojr'after  jt,  and  could  be  4epiîu(ideèl  and  gureendered  for 
îrial  for  Buehact  to  the  crimmal  triljvmals  of  ihe  coôntry  against  which 
ie  waa  nuaking  war.    Iftàereforeti^  attaicfeupon^t.  AlS^M'^an 
liostîîe  attftck,  ma*  by  parties  açîëng'  in  beh«Jf  of  tbè  Gqufed^rate 
Governttient— and  expresaly  orimpUedly  ftirthomed  by  tbatOo^fem- 
î^ent,!  must  loobat  ti^^  àttaok  itself  ftâtiie  act  whicfî  I  am  to  con- 
aidety     I  must  look^t  the  numerbtts  instaneeé  wBch;  e«««urrHj: 
during  its,  continuariee  as  the  élément»  whicb  ift'the  aggte^t^  opn'-_« 
stitiite  thé  act  déne-by  Young  andJûs  party— as  tltô  firingiof  ail" 
the  sbotB  in  an  action  taken  together,  oonstitute  auch  àptâon*    And  ' 
I  can, no  înore  treat.thô planer of  Brecï, aabeinè  enively distinct 
and  separate  froni.the-  (Jthéj"  re«  gestcB,  thp,n,  if  the  niattér  Cïùnê 
before  me,  I  could"  regard  the  bufning  of  any  pwctioiilar  house  jn 
the  Shenandoab  VaJley  by  any  individua)  in^the  î'edral  anny,;a3^ 
an  isolatèd  act  of  arson.  '  Ai  >i 

That  acts  cognizable  by  the  law  of  niationa  are  .necçssai^l*  M^ , 
firom  KabiUty  to  investigation,  or  raûier  to  ponisliment,' bj*"  tbê 
ordinory  courts^  is  therefore  an  important  point,  adnàtted  by 
\Vebster  himself,  and  sustained  by  the  nmnejFoua  authôritiefl' 
on  this  point  that  bave  been  cited  from  the  bdr.  Thiia  opimàn 
was  followed  in  the  oase  of  the  Boanoke.  When  («he  «aptors 
Were  taken  up  as  pîratôs  on  that  oecasion,  they  prodaëed  A  com- 
mission from^^ersoû  ^vis  as  tliô  aûthority  un^er  which  they 
were  actins^  Did  the  Court  stop  to  question  it  ?  îîo.  ;  the  Judge 
stopped  iÛ  examination,  or  rather  the  Attoiliey-Cfeneral  did  so. 
He  said--|ùs  act  -«ras  committed  by  one-fiio  |ttùg»a«eés  the  aulhob*' 
ity  of  bis  Avereign  as  his  justâfication.  His  case  tâtoi^fore  is  no 
longer  one^rhiçh  can  bfe  proceeded  wi*h  as,  a  robh^ry  foç,  WMch  he 
is  amenable  individuall^  to  the  ordinary  conTta  ;  iiâa^the  pnsonera 
were  tiiereupon  immediate^y  discharged.  And  JUurlBnsseU,  in  his 
despatçh  on  the  sul^ect  entireîy  sustains  the  adâon  of  the  ;  court 
— and  holds  ihttt  the  reaion  given  for  the  disdliajrge  was  att^<!ient. 
I  MU  aware'  that  it  bas  been  forcibly  urged  for  the  ap^eaints, 
tbat  the  offence  charged  is  of  such  a  nat\âe,^that  it  does  not  fal| 
within  the  laW^of  nations,  not  being  et  sueh  a  êhara«?ter  as  is  jqa^f 
•fied  or  penmssible  under  the  laws  of  war-;  but  when  I  cône  to 
the  considération  of  their  prétendons  in  tins  behalf,  I  shall 
l.«xamine  thé  law  in  référence  to  tkem)y.and  see  if  thcirs  be  (unythbg 
that  tsdcee  Ôùs.  matter  oùt  of  the  law  of  nationa  j  and'  if  th^re  be  nOt, 
tliese  piisoners  hâve  a  right  to  inroke  tlie  benefit  of  that  low.  In 
support  of  the  gênerai  proposition  I  hare  laid  down  ihaA  if  the^aot 
«oftti^ed  of  be  anÛionsed  by  the  0<»ifederate  States,  individtials 
(SOncsnUKi'lii  il  uuxni  uul  aiiu  oauuut,  oc,  neiu  personuiy  respon* 
«ible  in  ^  ordinbry  tribunals  of  law  f6r  iheir  participation  in  i|,  I 


4      «r 

.1 1' 


i\ 


/- 


^. 


/ 


456 


'H 


*  * 

I  will  cite  merely  a  few  authonties  :  for  were  I  to  go  over  ail  thoee 
applicable  to  the  point  it  would  take  me  days,  not  houn,  to  délirer 
my  décision.  I  refer  to  Halleck,  pp.  804,  6,  6  ;  1  Opinions  of . 
Attomeys  Qeneral  p.  81  ;  Tahnadge's  Review,  26,  Wendell,  p.  66af 
Carrington,  elt  al.  vs.  C.  Ins.  C».,  8,  Peters,  p.  622,  and  Vattel, 
Ratherford,  and  Burlamaqui,  irho  are  referred  to  by  General 
Halleck  sustain,  the  same  view. 

And  it  bas  been  held  by  Kent,  by  Chief  Justices  Spencer 
and  Gibson,  and  by  Professer  Greenleaf.  In  fact  there  can 
be  no  doubt  entertained  ob  the  si^bject,  for  no  municipal  tri- 
bunal in  any  nation  in  ike  world  could  be  found  to  dispute 
it.  To  show  how  fer  the  principe  is  carried  in  England,  I  will 
refer  to  a  case  which  bas  been  de«^ded  thWe,  tuming  on  this  point 
before  the  Prize  Court  m  Englaiid,  and  adjudicated  upon  by  one 
of  the  greatest  jiidicial  minds  England  ever  possessed, — Lord  Sto- 
well.  In  1801  a  case  came  up  in  which  the  title  to  a  ship  was 
called  in  question,  as  having  been  derived  fron^  an  Algerine  cap- 
ture, on  the  ground  that  the  Algerines  were  mère  c^ca^irs  sending 
out  their  ships  to  prey  upon  thé  commerce  of  the  whole  world,  and 

,  as  enemies  of  the  whole  world,  ^ere  mère  pirates  from Vhom  notitle 
to  a  captured  vessel  could  be  hcquired.  But  the  cpntrary  ground 
was  taken  by  the  court,  and  it  was  decided  that  the  African  States 
being  an  established  Govemmlent,  and  it  being  a  recogB^ed  rule  of 
action  of  that  govemment  to  prey  upon  maritime  commerce  though 
their  potions  of  justice  differedffrom  thosé  6f  thêy-est  of  mankind,  still 
the  tifle  from  the  Algerines  toi  the  captured  vessel  was  good.  And  it 
must  be  remembered  that  thieJdecisioû  was  rendered  aga^t  a  British 
subject,  and  a  British  ownei-  (4  Rob.  p.  3,  Cadè  of  the  Helena)^ 
So  it  seems  to  be  concededi  that  a  nation  notoriously  at  vanance 
widi  ail  the  nations  of  the^orld,  wfîising  to  admit  the  principles  ' 
which  govem  civilized  nations,  but  preving  oh  the  commerce  of  ail; 
could  nevertheless  secure  à  good  titîe  fôr  the  purchaser  of  Hxeir 
capture  by  a  confiscation  ^n  their  way.  And  in  discussiag  this 
décision,  Jûdge  Talmadge  stites  that  "  the  same  principle  of  immudty 
applies  to  hosdlities  uponjhè  land  and  upon  tiie  sea."  Ih  the 
debate  m  the  House  of  Lords  m  «he  16th  May,  1861,  Lords 
Derb^,  Brougham,  Chehns&rd,  K^^own,  i^d  the  Lord  ChaaoeUor 
ail  laid  down  jn  forcible  lajagiM^  ibe  same  pnnciple.. 

^ .  "  If  then  tibe  act  of  the^  neu  ia  a  hostile  act  done  on  J>ehalf  of 
one  of  the  beîligereats,  afd  thetefore  a  public  act  in  the  sensé  in 
which  that  phi^  is  us«ii  by  ik^  leamed  writers  just  cited,  the 
State  Courts  w<^d  be  onable  to  trei^  it  as  an  offienoe  against  their 

laws — aod  would  rioUte  weir  Isws  if  they  attempted  to  dp  so  ;  jiwt  '  " 

.M  I..WftBld  be  yiolafitTiie  tfip  law  hf  myown  coiintty  if  I  took  wp  tha 


X' 


matter  as  a  mattor  co|, 
I  comihit  the  prisoners. 


Eible  b|7  those  courts-^which  I  must  do  ^ 


451 


.i< 


are  independent  of  each 
ior,  there  is,  unforttmatel 


Now  a  governfflent  that  ezists  for  thé  time  being,  even  by  xnmr- 
pation,  is  a  govenunent  de  facto,  and  is  entitled  by  the  law  of 
nations  to  the  right  to  make  war,  and  to  the  other  privilèges  of  a 
belligerent.  Whether  tiie  Southern  Confederacy  is  recognized 
as  a  sovereign  power  or  not,  it  has  the  character  of  a  belligerent  ; 
it  has  the  right  to  raise  troops  and  to  do  everytlnng  in 
fene  of  war  that  an  independent  goVemment  in  that  behalf  can  do. 
If  it  violâtes  thé*  law  of  nations,  reprisais  and  retaliation  may  be 
Tisited  on  it.  If  it  does  anything  wrong  it  is  liable  to  be 
visited  with  punishment  as  the  law  of  nations  and  laws  of  war 
direct. 

By  Uiese  laws  no  other  appdil  exists  than  to  the  sword,  beyond 
the  moral  effect  which  the  opinion  of  other  civilized  nations  may  be 
supposed  to  exercise  upon  every  comïnunity.  The  doctrine  is  forci- 
bly  laid  down  in  one  of  the  valuable  notefi  to  the  translation  of  Mr. 
V'attel's  work  at  page  3pl/     "  As  natfons  (^says  tiie  annotator) 

ier,  and  acknowledge  no  common  super- 
no  sovereign  power  ambng  nations  to 
uphold  or  enforce  international  law  ;  no  tribunal  jto  which  the 
oppressed  can  appeal  as  of  right  against  the  oppressor,  and  conse- 
quently,  if  either  nation  refuse  to  give  effect  to  the  established 
princ^les  of  international  law,  the  only  redress  is  bjrresorting  to 
arms,  and  enforcing  the  performance  of  the  natia^É|^bligation. 
See  upon  this  pomt  also  Halleck,  p.  73.  2  Azuni,  p.  ^^*  Wheaton, 
pp.18,21.  ,  ,  '     .  ''     * 

I  ain  undoubtedly  boi|^d  to  apply  thè  principles  of  the"  law  of 
antions  to  the  relation  botween  the  contending  parties  in  this  war — 
and  I  hold  myself  so  bound,  not  only  by  the  proclamationjaf  neutral-  ' 
ity,  hut  also  by  th*  clear  principles  of  the  laws  of  nations  thém-\ 
selves.   I  am  of  opinion  that  the  civil  war  now  existing^between  the^ 
Northern  and  Southern  States,  constitutes  a  state  of  per&ct'war  : 
i^t  the  Government  has  recognised  it  :  and  that  the  miîies  are  j 
belligerents,  a^  are  entitled  to  ail  the  rights  of  ^'eiUgÎM'ente, 
and  to  carry  offthe  war,  quoadike  other  belligerent,  a8^-p^  think 
fit."  That  no  neutral  could  adjudicate,  ^between  thqjjlidaigejaenté, 
as  tp  their  manner  of  making  war.    And  that  the  aiithority,  expi-ess 
or  implied,  of  onet^  the  belligerents  to  do  any  hostile  act  as  against 
the  other  in  az^  part  of  tbe  territories  of  the  belligerents,  takes 
Buch  act  out  of  aie  range  of  municipal  law,  and  removesany 
reaponsibilky  to  t^t  law,  from  the  individnal'committing  it   1  w^ 
tiMrefore  now  léave  this  branch  of  the  suMfÉik^d  proceed  to, 
aaoUier  x>omt,y  in  which  I  will  assume  ImSKi  laws  of  war 
jusiâfied^uie  issue  of  suoh  a  oammisdon  &oml9HPftm  as  the  btae 

~Hv  ^tnmg-haa  TQceîvedj'and'  ^C^t^T^imi-  boand  to~ 
recogBÔBe  that  oomiDicinou''a8  a  docun^ent  which  I  jni^treat  as  légal 


v 


11 


i 


'  -p 


i:- 


\» 


468 


•  / 


I'!   . 


'I 


j 


évidence  in  thi^caso.  And  this  point  is  one  upon  whioh  the,  fippli- 
cants  hâve  dwelt,  as  bëing  most  important  to  the  due  décision  of 
this  case. 

It  has  been  contendéd  by  the  connsel,  that  this  is  not  an  act  of 
war  per  se,  but  if  an  acf  of  war  at  ail,  is  only  so  oonstructively. 
I  do  not  t^^rstand  this  distinction.  No  author  with  whom  l  am 
acquainted*  has  ever  made  iti  and  it  has  never,  to  my  knowledge, 
been  urged  in  a  court  of  justice. 

Acts  of  vmr  by  the  law  of  nations,  are.just  such  acts  as  the  belli- 
gerents  choose  to  commit  within  the  territories  of  each  other. — 
Thèse  acts  are  done  upon  the"  responsibility  of  the  nation,  and  the 
soldiers  committing  them  can  in  no  way  bé  held  punishable  for 
them.  They  may  be  what  is  termëd  unlawful  acts  of  war,  and 
violations  of  the  l|,w  of  nation^,  but  I,  as  a  judge  in  a  neutral 
country,  cannot  sît  in  judgment  upon  them.  Being  committed 
within  the  t^ggjtory  of  the  belligerent,  there  is  no  violation  of  our 
law 


nor 
me.     By 

ail  autliofïi^ 
of  i^e  teffi 
Whatever 


f>  belligerent  invoke  their  unlawfulness  before 
mational  code,  reciprocitv  is  aclmowledged  by 
one  of  the  obligations  of  belligerents,  and  ono 
lawfolness  of  their  acts  as  against  each  other. 
s  done  by  one  nation  to  the  other,  witiùn  belli- 
geirerit  territory  in  canying  on  the  war,  must  necessarily  be  per- 
mitted  to  the  other.  As  a  matter  of  fact,  raids  of  this  descrip- 
tion hâve  been  constantly  permitted  and  justified  by.and  on  behalf 
of  the  United  States  ?  On  what  principle  then  can  they  be  denied 
to  the  so-called  Confederate  States.  However,  as  far  as  regards  the 
violence  or  unlawfulness  of  thèse  acts,  as  a  neutral  I  hâve  no  au- 
thority  to  décide.  It  is  for  the  belligerents  themselyes  to  deal  with 
thèse  questions  ;  and  wheré  authority,  either^xpress  or  implied,  is 
given  by  one  belligerent  to  d4  the  act,  it  is  an  act  of  war  for 
which  alone  the  belligerent  is  responsible.  Thèse  doctrines  do  not 
apply,  and  never  coidd  be  intended  to  apply,  to  crimes  possessingno 
characteristic  of  hostility,  committed  by  order  ofa  sovereign  in  time 
of  peace  and  without  just  cause.  There  is  no  analogy  between  the 
cases  cited  by  the  counsel,such  as  the  treacherous  assassination  of  an 
individual  by  a  hired  murderer,  and  casies  of  the  description  now 
before  me.  They  rest  upon  entirely  différent  grounds.  The  gêne- 
rai and^abstract  nrle  undoubtedly  is,  thaievety  subject  of  one  belli- 
gerent is  the  enemy  of  every  subject  of  the  other,  and  that  one  belli- 
gerent may  lawfîilly  kiU  his  enem^  or  seize  upon  his  property 
wherever  he  findis  faim  or  it,  except  m  neutral  territory.  Happily 
for  the  world,  crf  which  so  large  a  portion  is  ôonstantly  en^ged  in 
war,  civiliaed  dations  in  modem  ^mes^  hâve  volnnttttjly  impoiaed 
;^pbn  themselves  |^és  for  their  guidàncé  in  war,  the  brellcb  ôf 
whioh  exposes  ihe  nation  which  infringes  them,  to  the  oensore  and 


/ 


fi»- 


-..<^ 


459 


réprobation  of  other  civilized  nations,  and  to  reprisais  and  retaliation 
by  the  belligerent  in  respect  of  which'  the  breach  bas  occurred. 
Tjiese  abstract  or  gênerai  principles,  and  the  exception^  to  them    ' 
fluggested  by  the  modem  mies  of  warfare,  constitiite  the  proposi- 
tions established  by  the  authorities  cited  at  the  bar  <^Évi  sides. 
For  the  applicants;  numerous- authorities  haVe  been  (JMHp^  '^^^ 
that  the  pillage  of  private  citi^ÉK^and  the  killing  of  ùPHteed  one», 
are  prohibited  by  thèse  mocÉI'P'bsages.    For  the  ^efeifce,  the 
gênerai  mies  bave  been  cited  vhîch  recognise  the  abstratct  right  of 
every  belligerent  to  kill  or  plunder  his  enemy.     Jbat  pillaging  a 
hostile  town — whjch  necessarily  involves  the  pillage  of  the  citizens 
of  thattown,  is  an  act  in  ita  nature  hostile,  and  \»bich  hasprobably 
been  done  in  every  war  that  bas  occurred  since  thé  world  began, 
cannot  be  denied — nor  that  it  is  within  the  abstract  ridits  of  a  belli- 
gerent.   It  is  probably  equally  susceptible  of  proof  tb^  this  species 
of  'Warfare  is  not  alluded  to.    And  1  may  be  çersônally  of  opinion 
that  the  infringements  of  thèse  ffliiôllem  usages  involved  in  this  ex- 
pédition— and  if  we  may  crédit  the  public  prints,  not  unusual  on 
either  side  in  this  unhappy  strife — are  crael  and  barbarous  and  dis- 
graceful  to  the  great  nation  between  whose  sections  they  bave  oc- 
curred.   But  what  is  the  conséquence  ?    Can  I  say  that  I  do  not 
consider  the  pillage  and  buriiùig  of  St.  Albans  such  acts  as  aro 
approved  of  by  the  modem  usages  of  war,  and  therefore,  although 
imdoubtedly  within  the  rigbts  of  war,  that  I  will  treat  the  prison- 
ers  as  ordinary  félons,  and  deny  them  altogether  a  hostile  charac- 
ter  ?    Such  a  proposition  is  too  monstrous  to  suffer  me  to  entertain 
it  for  a  moment.  \* 

A  very  few  authorities  will  establish  the  correctness  of  thèse 
views.  See  Wheaton,  pp.  618,  619,  686  «Kpeq.,  626.  8  Philli- 
ffiore,  116, 116, 187.  2  Grotius,  (trans.)  p.  66.  2  Wildman,  8, 
10,  24.  Vattel,  399.  .  And  the  distinction  is  actually  clearly  laid" 
down  in  manyofthepassages  cited  for  the  applicants.  For  instanee-, 
Vattel,  p.  861,  beinç  cited  ;  see  p.  862,  making  the  distinctbn. 
See  also  the  distinction  taken  at  p.  360,  from  the  doctrine  laid 
down  at  p.  369.  In  p.  359  the  distinction  is  taken  in  the  sentence^rf 
adjoining  the  one  cited.  '        "  « 

As  regards  any  violation  of  the  law  of  nations,  it  \^  laid  do\m  that 
if  persons  engaged  in  war,  but  offending  against  its  laws,  are  cjiptured 
by  their  enemy»  they  may  be  dealt  with  as  «uch  énemy  may  think 
proper.  If  taJcen  within  its  territories,  they  may  be  hanged  or  shot 
after  a  military  trial  of  the  most  summary  description.  Bïit  it  * 
must  be  remembered.  that  it  is  when  captured  within  the  çnemy'a  l 
territory^  and  only  then,  that  thèse  perBohs  are  liaMe  to  be. 
pùmshedTm  this  manner.  But  it  is  pretended  that  if  iaclï  pértnaiff 
are  not  captured  ;  that  tf  they  escape  fromN^e  enemy  and  seék  an        i. 


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23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

(7)6)  S72-4903 


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asylum  in  neutral  temtory,  it  follows  ttat  under-such  an  extradition 
treatjr  as  ours  the  neutral  power  should  give  them  up. 

.Jifr.  Bethune.—Cmmt  they  be  sçrrendered  ? 
_  Judffe  Smith.— l  venture  to  say  there  is  nothing  to  that  effect 
m  the  bookB— nothing  that  even  distantly  alludes  to  the  possibility 
of  surrender,  because  of  the  violation  of  the  lawdTôf  war.  The 
Treaty  between  the  two  govemments  provides  that  for  the  violation 
of  the  criminal  law,  parties  shall  be  surrendered  ;  but  for  violation 
of  national  law,  as  between  belligerent  powers,it  does  notpvethat 
right  :  for  it  would  be  to  déclare  that  because  an  act  by  the  law  of 
nati<ms  was  a  violation  of  the  rules  of  war,  therefore  a  private 
tribunal  should  consider  itself  compétent  to  try  the  case  as  a  viola- 
tion of  municipal  law. 

There  is  no  law,  no  authority,  no  précèdent,  no  work  of  any  de- 
scription, which  déclares,  that  because  a  hostile  act  may  be  unlaw- 
ful  in  one  belligerent  as  violating  the  rules  of  war,  the  neutral  is 
boùnd  to  give  him  up  to  the  other.  I  lay  stress  npon  this  point, 
because  it  is  one  on  which  there  is  great  différence  of  opinion 
among  the  counsel  at  the  bar.  An  obvions  illustration  of  the  true 
distraction  was  put  at  the  bar.  AU  the  authors  déclare  that  il?  is 
unlawful  to  shoot  a  prisoner,  after  he  is  surrendered.  But  wpuld 
a  person  acting  unlawfully  in  this  respect  be  liable  to  extradition 
as  an  ordinary  félon  ? 

From  the  commencement  of  the  seventeenth  cèntury,  when  the 
principles  of  intemationja  law  began  to  awaken  attention,  down  to  the 
présent  time,  there  is  no  authority  that  does  not  recognise  the  dis- 
tinction now  under  discussion.  But  hère  I  dismiss  this  branch  U 
the  case.  4 

If,  then,  the  Confederate  States  had  the  undoubted  right  to 
appoint  officers  and  soldiers,  and  if  we  are  undoubtedly  obliged  to 
recognize  that  right,  then  the  view  I  entertain  of  the  évidence  indi- 
cates  the  mode  in  which  I  regard  the  position  of  Lient.  Yonng, 
before  me  ;  as  I  hâve  just  stated,  I  consider  it  proved  that  Young 
was  80  appointed,  and  that  the  other  prisoners  were  soldiers  of  those 
btates,  formmg,  with  tlie  remaining  persons  who  joined  in  the  attaek 
on  St.  Albans,  a  party  organized  for  the  purpose  of  a  hostile  expé- 
dition against  that  town,  under  the  authority  of  their  Government. 

Ihe  authoritv  of  the  party  for  the  expédition  seems  to  me  to  be 
sufficientlyestablished  by  the  évidence.  It  is  truly  said  by  writers 
on  thi»  subject,  that  such  authority  may  be  express  or  implied, 
(Wheaton  pp,  626-7),  and  m  this  oase  both  kinds  of  authority 
açpear  t»1kave  existed.  There  is  direct  authority,  from  the  elïèct 
rf  the  instruotioiis  ,^en  to  Young  by  Mr.  Seddon,  and  by  Mr. 
a»y,  to  wIrâD  U  Mis  refered  by  Mr.  Seddon  ;  and  thero  w  iœ- 
phed  authonty  from  the  possMsjpginiiiilitary  rank  in  the  serrioe 


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461 


extradition 


that  effect 

poasibility 

war.    The 

le  violation 

>r  violation 

ot  give  that 

the  law  of 

)  a  private 

as  a  viola- 

of  any  de- 

be  unlaw- 

neutral  is 

this  point, 

of  opinion 

»f  the  tnie 

that  i<^  ia 

But  wpuld 

extradition 

,  when  tiie 
lown  to  tiie 
se  the  dis- 
I  branch  hf 

i  right  to 
obliged  to 
lence  indi- 
it.  Yonng, 
liât  Young 
rs  of  those 
the  attack 
etile  expe- 
vemment. 
>  me  to  be 
by  writers 
T  implied, 
authmity 
the  efiect 
ad  by  Mr. 
lere  is  im- 
he  service 


of  the  Confederate  States.  As  to  the  direct  authority  received 
by  Young,  it  is  unnecessary.to  quote  books;  it  is  a  mère  matter 
of  testimony  excerpt  in  respect  of  the  effect  of  the  aJIeged  breach 
of  neutnUity,  which  I  shall  hâve  occasion  presently  to  discuss. 
But  as  the  authority  given  by  Mr.  Clay  bas  been  stated  to  be  an 
abflolute  nullity  becauàe  pven  hère,  I  may  say  a  word  respeeting 
it, «rpassing.  I  do  not  hold  that  the  approbation  or  authority  of 
Mr.  Clay  was  essential  to  bring  the  acts  of  the  prisoners  at  St. 
Albans  within  the  im|)unity  afforded  them  by  mtemational  law  ■ 
but  as  iDounsel  hâve  laid  much  stress  upon  this  point,  I  >rill  state 
my  views  upon  it.  I  find  no  rule  or  principle  of  hiw  which  stamps 
this  act  of  Mr.  Clay  with  absolute  nullity  :  as  between  the  belliger- 
ents.  Nor  do  I  find  his  position  as  a  diplomatie  agent  in  a  neutral 
oountry,  at  ail  unusual.  We  hâve  the  well  known  instance  of 
Mr.  Mason  in  England,  and  Mr.  Siidell  in  France.  They  hâve 
not  been  reoognized  as  ambassadors  because  the  independence  of 
the  South  bas  not  bee»  recognized  by  those  govemments  ;  but  if 
they  hâve  not  those  powers,  they  hâve  rights  as  agents  of  a 
belugerent. 

The  concession  of  this  position  does  not  admit  that  they  hold  the 
position  of  ambassadors  nor  that  the  govemment  of  thbse  countries 
hâve  reoognized  them  aa  accredited  envoys.    But  in  fact  Mr. 
Slidell  and  Mr.  Mason  hâve  held  correroondence  with  the  ac- 
knowledged  officers  of  the  English  and  French  govemments— 
they  bave  esercised  certain  powers  thou^  they  hâve  not  been 
reoeiVed  àà  ambassadors  of  a  recogniaed  power.    Ead  Russell 
ha«  corresponded  with  Mr.  Mason  aa  the  agent  of  his  govemment  ; 
»nd  Mr.  Slidell  bas  had  interviews  with  Mr.  Drouyn  de  L'Huys 
in  tbe^Bame  quality.    And  we  know  also  that  Commodore  Barron 
<iirected  the  cruise  of  the  Florida  which  terminated  in  the  bay  of 
Bahia.    And  therè  are  numeroos  instances  in  which  the  United 
States  govemment  hâve  sent  agents  to  other  ooMntrie»  under  similar 
circumstances. 

As  to  the  implied  authority  derived  from  the  Commission,  I  will 
refer  to  two  or  three  books,  to  which  numbers  of  othèrs,  of  the 
«ame  ténor,  might  be  superadded.  Mr.  Lawrence  says  (Wheaton 
p.  248  :— "  But  in  the  case  of  one  having  a  oommisnon  from  a 
**  çarty  to  a  recognized  civil  war,  Bo-iivegularity  as  to  aots  donc 
%jwe  beUi,  will  make  a  pirate."  Mr.  Wheaton  says— speaking 
of  the  abstract  right  of  the  subjeots  of  the  belUgerent  powers  to 
Matil  eaoh  otheis-that:  "  the  usage  ornationB  bas  modified  this 
'<  maipn,  by  legaliaing  suoh  acts  of  hoetiUty  only  as  are  oommitted 
«  Is  those  who  are  autlwrised  by  the  ezpresa  or  impUoit  command 
^  «f  «ir  ifete.  Suoh  an  ^  régmfiff  emmnutimed  naval  and 
«  military  forces  of  the  nation,"  p.  627.    In  the  Chesapeake  ease 


^'    v^ 


'il 


i 


462 


Judge  Ritchie  only  holds  it  to  be  necessary  that,  even  neutrals 
engagmg  in  acts  of  hostility  sliould  be  "  acting  uiider  the  atithority 
"  of  a'commisaion  which  will  bear  the  test  of  a  strict  légal  scru- 
"  tiny."  "  Belligerents,"  he  says,  "  mav  make  captures  without 
"  Commission,"  but  that  neutrals  can  only  proteot  themselves  by 
commissions  from,  or  actmg  under  authonty  of  the  billigerent 
govemmeut.  See  on  this  point,  opinions  of  Attomeys  Geneml 
Vol.  1,  p.  81,  26  ;  26  WendeU,  p.  675,  1  Kent,  pp.  94  and  96,' 
Lord  Russell  to  Lord  Lyons,  Wheaton,  pp.  263^.  Halleck,  p. 
388.  Debate  in  the  House  of  Lords  on  the  proclamation  of  neu- 
trality. 

If  thèse  propositions  of  law  and  fact  are  sustained  by  the  author- 
ities  and  by  the  évidence  of  record,  asl  believe  theyare,  it  fellows 
necessarily  that  the  attac|^  on  St.  Alba^  by  Young  and  his  party 
must  be  regarded  as  a  hostile  expédition,  undertaken  and  ouried 
out  under  the  authonty  of  the  so  called  Confederate  States,  under 
the  command  of  one  of  their  officers.  And  from  the  principles  I 
hâve  laid  down,  I  ï^ust  also  hold  that  the  acts  of  Young  and  hia 
party  on  that  expédition,  while  in  theur  enemy's  country,  in  so  far 
^  as  they  hâve  a  hostile  character,  do  not  fall  within  ordinàry  crimi- 
nal  laws,  but  under  international  law  and  the  rights  of  beligerents, 
and  that  the  propriety  of  their  acts  in  that  capacity  must  be  settled 
between  the  belligerents,  and  nqt  by  a  neutral  Judge.  But  I  can- 
not  leave  this  branch  of  the  subjèct  without  examining  an  argumenj 
of  the  Counsel  for  the  appligants,  which  is  to  this  effect.  «i, 

They  say  that  the  act  which  apparently  violâtes  the  municipal  l^tr 
of  Vermont,  and  which  it  is  attempted  to  protect  from  the  con&fe- 
quences  of  that  violation,  by  invoking  the  immunity  affordeà  to 
belligerents  by  the  l%ws  of  war,  is  really  deprived  of  its  belligerent 
charaçtei-,  and  consetmentiy  of  that  immunity,  by  the  'teeact  qf  the 
laws  of  Beutrality,  wSich  they  say  the  prisonerscommitted.  That 
is  the  broad  proposition  of  ii»e  prosecution.  They  say,  you  cannot 
enjoy  the  benefit  of  the  law  of  nations  in  this  instance  ;  you  cannot 
be  considered  as  belligerents.  Whatever  characteristic  of  bellige- 
rency  you  may  hâve  had,you  hâve  ceased  to  possess  it.  You  came 
hère  seeking  au  a^ylum,  you  placed  yourselvcs  under  «he  protection 
of  the  laws  of  tiiis  country  :  you  hâve  violated  those  laws  by 
violating  our  obligations  as  neutrals,  and  you  hâve  thereby  ceased 
to  be  entitied  to  be  regarded  as  belligerents.  And  this  argument 
haâ  been  pushedso  far  as  to  assert  that  imder  the  facts  proved, 
the  prisoners  had  acquired  a  domicile  hère,  aîid  had  loflé  not  only 
their  character  as  lawful  belligerents,  but  tiieir  national  character. 
Hère  also  much  discussion  may  be  rdndered  unnecQfeary  by  ascer- 
taining  whi^^Ë>et>^>r»  pisoved  ia  twqjpwt  <^^«e'çwteiffliOTr<rf^ 
the  applicants. 


463 


An  ezaminatièn  of  the  évidence  satisfies  me  that  the  real  state  of 
the  case  is  :  tfaiat  during  the  automn  of  1863,  Young  escaped  from  the 
United  State^  wh«re  Ke  had  been  held  as  a  prisoner  of  war,  and  that 
he  shortly  afterwards  reâched  Toronto,  where  he  rémained  ti]l  the 
spring  of  .1864,  during  part  of  whieh  time  he  appears  to  hâve 
attended  lectures  at  the  University.  That  he  left  Toronto  in  the 
spring,  declaring  his  intention  of  going  to  Richmond  ;  that  he  was 
in  Halifax  in  May,  with  the  same  «xpressed  intention  ;  that  he  re- 
ceived  his  appointment  and  three  letters  of  instructions,  dated  at 
Richmond,  in  June  ;  that  he  retnmed  to  Toronto  with  his  papers 
in  Julj  ;  that  he  was  in  Chicago  with  a  large  number  of  Confederate 
Boldiers,  in  August  ;  that  he  was  at  St.  Catherines,  in  Canada, 
where  Mr.  Claj  resided,  in  .3eptember  ;  that  he  was  in  Montréal, 
about  the  beginning  of  October,  at  St.  Johns,  C.  E.,  on  the  llth  of 
October,  and  at  St.  Albans,  on  the  19th  of  the  same  month.  That 
Spurr,  Huntlej,  and  Teavis,  were  aiso  seen  in  Canada  ;  Spurr,  in 
Toronto,  in  the  winter  of  1863-4,  and  Spurr,  Teavis,  and  Hutchin- 
son,  at  St.  Johns^  at  the  same  time  with  Young,  though  leaving* 
that  place  separatelj.  And  that  they  were  at  Chicago,  in  August 
last.  While  at  Chicago  the  expédition  against  St.  Albans  appears 
to  hâve  been  organised,  and  the  party  of  Con^erate  soldiers  raîsed 
according  to  Young's  instructions.  '.Aià  while  at  St.  Catherines, 
Young  reported  his  doing  to  Mr.  Clay,  and  obtained  his  sanction,  both 
verbal  and  written,  of  the  projected  attack.  "While  at  Montréal,  in 
October,  he  received  from  Mr.  Clay  1400  towards  the  expenses  of 
the  expédition.  «  . 

Passing  over,  for  the  moment,  the  question,  how  far  this  state  of 
facts  constituted  an  o£fence  against  the  laws  in  force  for  the  pre^ 
servation  of  our  neutrali^,  (which  seems  to  be  doubtful  but  upon 
which  it  is  ùnnecessary  for  me  to  give  any  opinion  ;)  would  or 
would  not  the  violation  of  our  neutrtdity  take  ,away  the  prisoners' 
characters  as  belligerents  ?  This  is  the  exact  point  r^ed  in  this 
connection  by  the  applicants,  and  great  stress  bas  been  laid  upon 
it,  and  many  authonties  cited.to  shew,  that  the  affirmative  of  tiiis 
proposition  is  the  law.  It  is  urged  that  the  prisoners  commîtted  tiie 
act  complained  of,  after  they  had  ceased  to  be  citizens  of  the  Con- 
federate States,  and  after  they  had  voluntarily  resigned  their  belS- 
gerent  character. 

It  is  asserted  that  their  résidence  in  this  country  involved'a 
change  of  domicile  on  their  part;  and  that  in  faot  Young  took  up 
his  iBsidence  there,  ^ntmo  manendi.  Therefore,  it  is  sa^^,  they 
hâve  violated  the  law  which  régulâtes  persons  domiciled  ^^tl^ 
country,  beoause,  by  àèquiring  Âat  domicile,  they  becamc»  ci^ns 
^of'thÏB  couiitry,~boiiiid"l)y  itR"^l»w8;  and^  Ihafr,""  a»  ar-confeqûenoci^ 
they  cannot  invoke  the  privilèges  of  belligerents. 


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$  I 


Ui^i^^i.^H-^-*^i--^'^- 


464 


.■^     l 


The  first  question  that  neoessarilj  arisea  in  the  examination  of  this 
pretension  6f  the  applicanta,  is  :  what  are  thé  faots  firom  the  évi- 
dence ?  does  it  appear  that  tibe  prisoners  hâve  acquired  a  domicile, 
or  even  hâve  taken  up  thôr  résidence  hère  ?  There  ia  no  doubt 
but  that  the  évidence  shows  that,  in  1863,  Bennett  Young  did  come 
to  this  oountry  as  a  poUtical  refugee  ;  that  he  resided  in  Toronto 
'  for  some  mont^,  and  that  he  attended  Lectures^  at  tàe  University, 
andwas  again  seen  th^re  in  July  or  August.  It  is  argued  by 
the  prosecution,  that  thèse  circumstances  eonstitute  proof,  so  far, 
of  an  intention  on  his  part  to  remain  in  Canada,  that  this  involves, 
in  the  eye  ef  the  law,  a  change  of  domicile,  which  prevents  his 
'  longer  claiming  the  character  of  a  belligerent  soldier  ;  and  places  him 
under  tibe  authority  of  Hxe  lawa  of  this  country,  which  forbid,  in  Ûie 
most  positive  manner,the  doing  of  any  thing  ocmtrary  to  our  obliga- 
tioQB  as  nentrals. 

That  Bennett  Young  remaineict  in  Toronto  for  a  time,  under  the 
protection  of  the  laws  of  tiiis  coiantry,  may  be  taken  as  proved  ; 
b\it  the  preenimption  as  t6  his  animw  manendif  passes  good 
only  80  long  as  he  remained.  If  a  foreigner  départs  from  a  country, 
the  animuB  revertencH  i&  presumed,  and  the  ammusmanendi  neces- 
sarily  disappears,  as  aSecting  the  law  of  domicile.  The  existence 
ol  the  ammti»  nawftidi  is  presumed  from  the  fact  of  continued 
reûdence  in  a  countiy.  But,  as  to  Young,  he  left  the  Province 
in  April  or  May,  to  go  down  to  the  Oonfederate  States.  The  proof 
of  tms  ia  ia  the  record.  In  short,  tiie  &ct  of  his  being  in  Rich- 
mond,  and  receiving  there  a  commission  firom  the  Oonfederate 
Government,  appeani  to  me  to  be  «lew. 

(Some  G^scuasion  hère  ocourred  as  to  the  pro<tf  of  the  présence  of 
Young  in  Bichmond.*) 

Judge  Smith. — T^  ténor  of  the  whole  of  the  facta  leads  to  tiie 
conclusion  that  he  went  to  Riohmond,  and  tihere  received  his  com- 
mission and  instructions  :  and  I  shall  assume,  fw  the  purpoee  of  my 
argument,  â^  this  was  the  oase.  Does  lius  voluntarily  entering 
into  the  service  of  his  oounixy,  as  a  Ooil&derate  sddier,  not  show 
the  intention  to  retun  hia  domicile  ef  ori^,  and  his  national 
character  ?  Now,  the  recepti<»  of  the  oommisaim  ahûws  that  he 
i;j9tttmed  to  the  service  of  lus  oountry.  So  fàr  as  this  question  of 
domicile  is  concemed,  the  animvs  manefidi  cannot  be  considered 
«s  exiating,  but  tiie  animut  rwtrtendi  is  rather  to  be  presumed. 
There  ca^'be  so  doubt  therefore,  tiiat  in  point  of  faot,  ûuew 
was  no  acquisition  by  him  of  a  domieile  hère,  nor  anj  losa  of 
his  national  character.  But  so  l<Hig  as  he  remained  hère  he  wms 
eôrtainly  bouad  by  our  lawa  as  mnch  «s  if  he  had  been  a  Bntjrii 
=^ W^ëot.  AniBSn^ itowffer tÈsllbwe Hfis l ^readi afnvoindîty' 
connected  in  some  way  wiUi  the  expédition  againat  St.  Albans, 


465 

would  that  breachof  oms^utrality  take  away  from  a  hostile  act 
committed  in  the  enemy's  territory,  the  immunity  due  to  it  ? 

The  CeUnsel  for  the  prosecotion  answer  tfais  question  in  the 
affirmative.  Bat  I  cannot  find  thia  prétention  sustained  by  any 
authority  ;  certainly  not  by  any  of  the  numerous  authorities  they 
cited.  The  law  of  nations  does  not  recognize  such  a  principle. 
No  judgment  of  any  court  that  I  am  acquainted  with  has  ever 
declared  it.  On  the  contrary,  the  true  doctrine  incontrovertibly 
is,  that  the  violation  of  the  neutrality  of  a  nation,  by  a  belligerent, 
has  no  effecfbr  bearing  whatever  upon  the  belligerènt  character  of 
the  offender,  in  référence  to  actB  done  within  the  enemy's  ter- 
ritory.  That  sud  violation  is  illégal  no  one  dénies,  and  in 
that  respect  the  authorities  cited  for  the  applicànts  are  unimpeach- 
able.  But  those  authorities  hâve  référence  chiefly  to  the  transfer 
of  property  by  capture,  and  they  properly  hold  that  a  maritime 
capture  may  be  held  void  by  reason  of  any  breach  of  the  law  of  neu- 
trality •which  occurred  in  makiog  it.  But  this  objection  to  the 
validity  of  a  maritime  capture^  is  a  thing  with  which  belligerents 
hâve  nothing  to  do.  If  the  Southern  bémgerent  violâtes  our  neu- 
tral  or  municipal  law,  what  has  the  United  States  Government  to 
say  to  that  ?    Can  they  complain  of  the  violation  of  our  law  f 

So  far  from  that,  ail  writers  on  international  law  hold  that  no 
violation  of  neutral  territory  can  be  considered  at  ail,  in  the  int«rest 
of  either  belligerènt.  It  is  the  neutral  alone  who  can  complain. 
But  examinipg  for  a  moment  the  pretension  ius  to  the  deprivation 
of  th«  character  of  hostility  by  a  breach  of  neutrality.  Take  the 
case  of  Gen.  Lee  coming  hère  virith  76,000  men,  takmg  poase^ion 
-of  one  of  the  railroads  in  Canada,  conveying  his  troops  through  the 
heart  of  our  territory,  and  in  retaJiation  for  acts  done  in  the  South, 
making  a  raid  on  Vermont.  Lee's  authority  to  do  this,  would  not  ' 
be  more  extensive  than  Young's  yfBÂi  and  th^  act  would  be  a 
greater  breach  of  neutrality  than  Yoùng's  could  hâve  beeb. 

Is  it  possible  that  Lee  would  be  held  to  havé  lost  his  belligerènt 
character  and  to  be  lijjïle  to  be  treated  as  a  mère  robber  ?  Or  that 
he  would  be  held  tb  retwn  his  beljigerent  character,  merely  because 
he  perpetrated  the  breach  of  neutrality  with  more  men  than  Young 
had,  their  acts  being  the  same,  and  their  authority  derived  from 
the  same  source.  Surely  he  who  commits  a  simflar  act,  though 
-with  but  20  men,  would  be  entitled  to  be  judged  by  the  same 
rule.  A  differei^t  décision  would  be  manitestly  wrong  in  prin- 
ciple. And  if  the  doctrine  be  applied  fidrly,  as  we,  as  neutrals, 
are  bound  to  apply  it,  what  becomes  of  the  hostile  character 
of  the  thousands  of  Fédéral  soldiers,  who  hâve  paased  through 
eatem  Ganaàfc  A*e  fe^  aU  robbeHh  because  they  bayg 
done  80?   are  the  sfldiers  ulegally  enlisted  hère  for  the  Fed- 

EB 


m\ 


TP 


...t.,,  J^"'*  ,  .: 


466 


*  u 


eral  annies  robbers  aJso  ?  But  assamkig  that  there  ia  a  viol&^n 
of  neutral  territory  in  thia  case,  in  its  lar^est  possible  sensé  ;  that 
thèse  men  hâve  gone  âirough  th^s  coùntry  to  St.  Albans  to  make 
this  md,  and  that  doing  so,  as  well  as  receiving  instructions  from 
Mr.  Clay ,  were  in  violation  pf  the  laws  of  neutrality.  Let  us  see  how 
far'the  authorities  sustain  the  proposition  I  hâve  laid  dpwn,  that  it 
is  the  neutral  only,  and  not  either  belligerent  that  can  complain 
of  such  violation,  at  least  befbre  àny  court  of  jùdtice.  I  shall 
cite  for  convenience  sake,  the  letters  of  "  Historiens^  to  illus- 
trate  the  matter.  They  are  sustained  by  the  force  of  thei^  reason- 
ing  and  also  in  every  case,  by  the  citation  of  authorities.  There 
is  no  rule  upon  the  point  now  ui^er  co|asideration  lùd  down  in  the 
letters  of  "  Histoncus,"  which  is  not  supported  by  authority,  not 
only  from  international  law,  and,, the  text  vriters,  but  to  a  great 
extent,  by  the  décisions  of  the  Courts  of  En^land  and  of  the  United 
States  themselves. 

Mr.  Harcourt  says,  p.  150  :  <*  The  elementaiy  and  universal 
*'  principle  whioh  lies  at  the  root  of  the  whole  question,  is  the 
"  absolute  title  of  the  neutral  sovereignty  to  immunity,  ^hether 
"  as  regards  its  territory  or  its  prérogatives,  from  the  interférence 
'*  of  belligerent  opérations  ofanyldnd.  A  violation  of  this  immunity 
*'  is  one  of  the  clearedt  and  highest  offences  agûnst  public  law. 
''  For  one  belligerent  to  pass  through  the  neutral  (jerritory  without 
"  the  leave  of  its  Sovereîgn — to  carry  on  hostile  opérations  within 
"  neutral  jurisdiction  ;  to  levy  soldiers  or,  sailors,  or  to  equip 
"  vesseb  of  war  within  thé  neutral  soil — are  familiar  instances  of 
"  violations  of  the  rights  of  neutral  sovereignty.  They  are  acts 
"  eminently  unlawful,  and  the  neutral  Government  is  entitled  to 
"  prohibit,  and,  if  necessary,  to  avenge  their  commisàon.  In 
"  order  the  morç  clearly  tp  illustrate  the  argument,  I  will  sélect 
''the  particular  instance  of  levying  forces  and  equipping  arma- 
"  ments  by ,  one  of  the  belligerents  within  the  neutral  territory,, 
"  without  aie  léftve  of  its  Sovereign  ;  in  order  accuratély  to  exam- 
'■*■  ine  the  rights  and  duties  to  which  such  an  act  giives  rise.  It  is 
"  now  admitted  on  ail  hands  (though  the  matter  waa  at  one  time 
''  faintly  disputed)  that  such  conduct  on  the  part  of  a  belligerent 
"  is  a  gross  violation  of  the  rights  of  the  neutral  Sovereign."  And 
he  says  at  p.  loi,  "  Such  acts  are  a  clear  vidation  of  ri^t  aa  be- 
"  tween  the  offending  belligerent  ma  the  neutral  governmçait.'^ 
And  at  page  151  he  continues,  "  Such  prooeedings  are,  theref<H«,. 
'"  upon  bo&  grounds  ii^  the  highest  degree  unlawfrd  ;  mumoipally,^ 
*'  aa  between  the  Sovereign  and  the  subjeot;  mtem^tionally  a» 
^Jt»etwe«tt  tlMLoflfendiqg  belligerent  an<|  the  offended  Bfflitnil." 


This  ia  a  statement  in  aucoinct  and  clear  laaguage,  of  the  doc- 
trine which  pervades  every  case  cited  on  thia  point  by  tiie  Connais. 


uiw  L  I    ï-v*  1 


467 

for  the  prosecution.  It  is  an  unlawful  act,  they  say  both  munidî- 
pally  and  internationally,  to  violate  the  neutrality  laws  of  the  neutrà\ 
power  :°and  their  position  ia  unasâailable  to  that  extent.  But  I  do 
not  agrée  with  then}  as  to  the  inference  they  draw  from  this  rule 
as  applied  to  the  présent  case.  Our  laws  upon  this  subject  are  not 
made  to  protect  the  United  States,  but  to  protect  ourselves.  Their 
object  "  18  to  prevent  foreign  nations  injuring  us,  not  to  protect 
"  them  from  one  another"— Ç'  Hjstoricus,"  p.  162.)  And  the 
breach  of  them  is  a  matter  with  which  the  other  belligereut  bas 
nothmg  to  do.  "  The  right  which  is  injured  by  the  act  ôf  the 
"  offending  belligerent  is  the  right  of  theneutral  govemment,  and 
"  not  that  of  the  other  belligerent,"  And  "  the  important/ conse- 
"  quence  of  this  proposition  is,  that  it  is  the  neutral  and  taot  the 
"  belligerent,  who  is  strictty  entitled  to  claim  or  to  enf^rce  the 
"  remedy.  And  he  is  the  only  person  who  is  entitled  to  «iomplain 
"  of  and  to  redress  its  infraction."  To  thèse  statemen^  of  the 
principles  applicable  tothis  point  in  whfch  I  use  the  word^  of  Mr. 
Harcourt,  f  inight  add  also  in  his^  language  that  "  Mfhen  this 
"  point  is  properly  apprehended,  the  solution  of  the  question  be- 
"  cornes  simple  aijàd  satisfactory."  And  I  hâve  no  doubt  but  that 
the  doctrine  thus;  laid  down  is  a  sound  one.  It  may  be  illustrated 
by  the  instances  ôf  the  passage  of  troops  through  neutral  territory 
(1  Kent,  p.  119)  Nthe  levies  of  troops  m  the  neutral  country  (Ib., 
119)  ;  Captures  in  tieutral  waters  which  ^  declared  to  be  "  as  be- 
"  twem  enemies  to  aB^  intenta  and  purposèa  rightful"  (3  Wheaton, 
Rep.  435.  The  Etrusco  3  Rob.  162),  and  captures  made  without 
the  territory  by  vessels  which  hâve  been  equipped  in  violation  of 
the  laws  of  the  neutral  state.  (Brig  Alerta  vs.  Blas  Momet, 
3  Peters  425).  Thèse  illustrations  are  cited  by  Mr.  Harcourt, 
(pp.  153,  4  and  5),  and  they  bear  a  close  anal^ogy  to  the  varioup 
bMMhès  of  neutrality  charged  against  the  prison^ers  :  namely,that 
traiorgarnsed  in  this  country;  that  they  passèd  through  iton 
thei  way  to  St.  Albana,  and  that  the  expédition  ^i^ceeded  from 
this  country.  Thèse  are  on  ail  fours  with  some  of  the  illustrations 
I  hâve  referred  to,  as  cases  in  which  the  neutral  alone  *'  can  com- 
plwn  of  or  redress"  the  violation  of  her  territory  ;  and  that  "  the 
right  which  is  mjured  is  the  right  of  the  neutral  alorie,"  and 
"  not  that  of  the  belligerent."  , 

1  hâve  taken  thèse  aùthorities  from  Mr.  Harcourt's  book  for  con- 
venience  merely,  but  it  would  be  easV  to  multiply  them.  The 
correctnesa  of  the  doctrine  they  lay  down  cannot,  I  think,  d>^ 
successfully  disputed.  Counael  hare  citeo,  a  iiuinber  of  authonbe»^ 
Jo  prove  that  a  breach  of  neutrality  is  unlawful,  thftt  caj^turea  m 
"violation  of  neutrality  are  subjëcf  to  be  declfured  void,-  fcud  w®;^*" 
violation  of  international  law  ;  buttheyhavé  not  cited  àny  atUio^ty 


hl 


' 'î 


468 


t'i 


to  prove  that  such  iUegality  or  such  violation  haa  any  other  effect 
than  to  make  the  ofifenders  reaponsible  to  the  neutral- 

In  mattere  of  violated  neutrality  the  neutral  alone  is  the  judge. 
In  this  case,  if  our  Government  pertnitted  the  passage  of  Young 
with  his  party  through  our  territory,  as  an  armed  party  of  Southern 
troops,  the  United  States  Government  mi^t  complain  to  our 
Government  of  the  granting  of  the  permission,  unless  wé  hâve 
granted  similar  privilèges  to  her  troops,  in  which  case  she  could 
not.  But  such  passage,  and  still  less  a  peacefîil  passage,  of  un- 
armed  or  apparently  unarmed  men  through  our  ternjbory,  can  afFord 
no  grounds  to  the  United  States  to  appear  befor'e  our  Courts,  and 
urge  that  our  neutrality  has  been  violated  ;  and  such  a  charge  from 
them  assumes'  a  character  of  absurdity  when  it  is  made  a  ground, 
indirectly  it  is  true,  but  still  a  ground,  for  an  application  that  thè 
offenders  be  handed  over  to  them  ^r  punishment.  If  that  is  law  I 
am  at  a  loss  to  imagine  upon  what  pnnciple  it  can  be  heîd  so.  I 
hâve  not'found  such  an  opinion  laid  down  in  the  books,  and  I  cannot 
but  consider  that  it  pçoceeds  from  fallacious  reasoning.  But  there 
are  récent  illustrations  of  this  view  precisely  in  point.  The  appli- 
cants  hâve  endeavored  to  shew  that  the  prisoners  had  become 
British  subjects,  pro  hoc  vice,  as  they  tenn  it,  and  subject  to  the 
obligations  of  British  subjects.  But  even  granting  that  they  were 
actually  British  subjects,  which  is  the  most  favorable  case  for  the 
applicants,  the  rule  couiftided  for  would  not  apply,  if  they  acted 
under  a  commission  froi# the  belligerent. 

I  hâve  already  adverted  repeatedly  to  the  Gerity  case,  but  I 
must  again  refer  to  it  in  this  behalf.  Ch.  J.  Cockbum  says  :  "  I 
*'  concur  in  thinking  tJbat  persons  so  acting,  though  not  subjects  of 
*'  a  belligerent  state,  and  though  they  may  be  violating  the  law»  of 
*'  iheir  own  country  *  *  •  such  persons  cannot  be  treated  as 
**  pirates."  In  îhe  Chesapeake  case  Judge  Ritchie,  speaking  of 
neutrals  eogaging  in  hostilities,  says  :  "  They  may  make  themselves 
^*  amenable  to  the  law  of  their  own  country  *  *  *  but  they 
"  cannot  be  dealt  vnûi  by  the  belligerent  against  whom  they  are 
"  acting,  as  pirates."  And  further  on  he  states  :  they  cannot 
*'  loithoutany  commission  or  authority  fit»out  in  a  neutral  country 
a  hostile  expédition  against  a  power  at  peace  'vrith  such  country," 
&c.,  &c.  And  he  wams  them  that  if  they  do  so,  they  must  take 
care  to  bave  a  commission.  In  the  Gerity  case  the  party  went  on 
board  the  vessel  at  a  neutral  port  ;  in  the  Roanoke  case  thepr  did 
so  also  ;  in  àié  Chesapeake  case  the  prisoners  were  British  subjects 
yet  it  was  distmctly  Uûd  down  in  two  of  those  cases  that  a  violation 
of  neutrality  did  not  affect  the  character  of  belligerency  in  the 
prisoners  ;  and  in  the  tUrd,  so  far  as  I  kuow,  the  question  was  not 
attempted  to  be  rajsed. 


m 


I  am  therefore  constrained  ko  hold  that  the  attack  on   St 
Albans  was  a  hostile  expeditioW  authorised  both  expressedly  and 


impliedly  by  the  Confederate 
miseioned  oflBcer  of  their  ai 
soldiers.     And  therefore  that 
as  incid^nt  to,  that  attack  can 
under  the  Ashburton  treaty 


tes  ;  and  carried  out  by  a  com- 
command  of  a  party  of  their 


in 


act  committed  in  the  course  of,  or 
e  made  the  ground  of  extradition 
And  that  if  there  had  been  any 
breach  of  neutrality  in  its'inception,  upon  which  point  I  state  no 
opinion,  it  does  not  affect  this  application,  which  must  rest  entirely 
upon  the  acts  of  the  prisoners  within  the  territories  of  the  State 
demanding  their  extradition,  and  upon  their  own  status  and  > 
authority^as  belligerenta. 

Before  pronouncing  the  judgment  which  is  îndicated  by  thèse 
remarks,  I  would  however  say  a  few  words  upon  another  branch 
of  the  case,  which  involves  considérations  of  the  highest  character  ; 
and  which,  though  I  do  not  allude  to  them  as  deciding  this  case, 
raust  hâve  their  weight  whenever  political  considérations  appear  to 
form  an  élément  in  any  act  for  which  extradition  is  demand- 
ed.    It  is  conceded  without  controversy,  by  vriters  and  by  the 
Courts  that  extradition,  laws  are  to  be  interpreted  by  the  law 
of  nations,  in  so  far  as  the  obligations  created  by  them  on  the 
part  of  one  nation  to  another  are  concemed  ; — and  that  the  then 
existing  public  law  of  both  nations  form  an  essential  part  of  the 
national  compact  which  is  created  b^  the  passage  of  an  extradition 
treaty.    In  1842,  when  this  extradition  act  was  passed,  the  publia;^ 
law  of  Great  Britain  as  well  as  the  public  làw  of  the  United  States 
became  incorporated  with  the  national  compact.    It  can  not  be 
said  that  England  or  the  United  States  nassed  this  act  wifehôut 
référence  to  the  public  law  of  either  Mjjjfry.     Then,  it  became 
part  of  the  contract.    The  stipulations  o^^e  contraçt  with  regard 
to  the  .définitions  of  the  crimes  covered  by  it,  were  to  be  carried 
out  iri  conformlty  with  the  municipal  laws  of  both  countriies,  in  so 
far  as  they  agreed.     We  hâve  then  the  law  of  nations,  and  both 
the  public  and  municipal  law  of  Ijoth  countries,  combining  to  form 
the  compact  effected  by  the  pasaing  of  the  Ashburton  treaty. 

Now,  if  the  public  law  of  both  countries,  at  the  time  the  extra- 
dition Act  passed,  recognized  the  principle  of  international  law,  that 
lawful  belligerents  are  entitled  to  ail  nghts  incident  to  a  state  of 
belligerency— that  should  be  tegarded  as  the  law  goveming  us,  just 
as  much  as  if  it  were  actually  inserted  in  the  Treaty.  But  the 
United  States  deny  that  the  so-calle.d  Confedettite  States  are  law- 
ful belligerents,  and  though  virtually  they  treat  them  as  such,  they 
refuse  formally  so  to  rec<Jgnize  them,  as  to  give  them  that  statu»  in 
thrir  CÔurta  ^  Justâce»  It  i»  ngon  their  déniai  of  the  poatiœi  of 
belligerency  to  the  Confe'Serate  States,  tîïs^such  claims  as  those 


•( 


'  I 


;'l 


il 


470 


s  we'.read  of,  bç  account  of  the  déprédations  of  the  Alabama  and 
the"  like,  are  based.  But  we  cannot  be  influenced  by  the  position  ' 
■which  the  United  States  hâve  thua  chosen  to  assume/  Thcj  raight 
as  well  choose  to  ignoré  portions  of  the  stipulations  of  the  ïreaty 
itself,  as  insist  upon  the  acceptance  of  such  an  interprétation  of  it.  ' 
For  my  part  I  must,  at  ail  events,  adopt  the  view  eipitertained  Jby 
my  own  country^  and  findinç  that  diflFer  from  the^one  adopted  by 
the^nited  States,!  fbel  additional  responsibilityand  thé  neeessi^yl 
of  increased  caution,  when  I  àm  required  by  the  latter  country  to 
do  my  part  towards  the  carrying  but  of  the  ïreaty.  The  United 
States  themselvcs,  and  ail  civilized  countries,  make  a  wide  distinc- 
tion betweeo  offences  committed  during  anfHrmal  statê  of  things, 
and  those  which,  are  incident  to  politieal. convulsions,  or  the  unusual 
con(^tion,  politically  speakîng,  of  any  portion  of  any  country. 
Under  thia  distinction,  politicaT  ofl^nders  hâve  always  been  held  to 
be  excladed  frbm  any  ooligation  of  the  country  vp.  which  thev  take 
refuge  to  deliVer  them  up,  whether  such  delivery  iaclaimedto  be 
due  under  friendly  reiationship,  or  under  treaty,  unleès  in  the  latter 
case,  the  treaty  expressly  includes  them.  The  case  of  fugitive 
slaves  appears>to  me  to  rest  to  some  estent  on  the  same  ground  ; 
aAd-on  principle,  the  extradition  of  a  fugitive  slave  for  taking  life 
in  defence  of  nis  right  of  personal  freedom,  would  seem  to  jne  to  be 
unsustainable,  except  by  a  nation  recognizmg  by  its  laws  and  within 
itself  the  institution  of  slavery.  And  deserters  hâve  been  ùsually 
treated"  as  being  in.the  same  category.  Political  offenders,  however> 
form  the  jpaost  conspicuous  instances  of  exclusion  from  the  opération 
of  the  extradition  law.  No  nation  of  apy  recognisecî  position  h(is 
been  found  base  enough^to'surrerider,  under.  any  circmnstances, 
political  offenders,  vrïio  hâve  taken  refuge  within  her  territories — 
or  if  there  be  instances,  they  are  few'in  number,  aiid  are  recorded 
as  précédents  to  be  reprobated  rather  than  foflowed. 

Ànd  it  is  in  connection  with  struggles  like  that  now*  going  on  in 
the  United  States,  that  the  doctrine  of  asylum  bas  received  its  most 
remarkable  illustrations.  The  famous  letter  of  Lord  Palmerston 
on4he  subject  oi  the.  Hungarian  refugees,  has  been  repeatedly 
lidverted  to,  and  contains  such  an  exposition  of  the  prmdple  as 
nùght  hâve  been  expect^d  from  that  statesman.  « 

(The  leamed  judge  hère  referred  to  Wheaton  at  pp.  40,  «<  seq.y 
and  139,  et  seq.^  discussing  at  considérable  length  the  position  and 
relations  of  a  nation  during  a  civil  and  revolutionary  war  ;  also  the 
effect  of  changés  in  ihe  j^ligations  of  treâties,  where  eitlier  pfrty 
to  theiù  has  been  revolutionized.)  „  ■'" 

>J!  do  not  hold,  howeyer,  nor  bave  I  «ny  right  to  hold,  that  the 
^^ftty  is  not  ilDi  force,  by  reason  oriûié  uffiappy  curcumstances  in 
which  the  United  States  find  themselves.    But  I  do  think  that  I 


^ 


V, 


^     't  ' 


> ^         471     ^ 

am  bound  to  scrutinizo  with  a  grcatfer  degree  of  caution,  the  cir- 
cumstfuices  of^ny  case  which  appear  to  posseaa  a  'poHtical  char-  ' 
acter,-or  wh»€h  *  scem  togrpw  out  of  the"  etruggle  ^hich  is  now 
proceeding.     And  I  must  be  tho  more  scrupulous  in  weighing  the 

h.  pretensiona  of  tho  prispnors  as  to  thçir  .ju8tific1^bn  b^  their  pos- 
session of  a  belligerent  or  political  character^when  t  know,  that  the 
defence  arising  out  of  such  a  cliaracter,  which  England  would  re- 
cognize  as  vali5,  if  ««^tain^jT;  would  not  èven  be  rcceived  or  listçnûd 
to  in  the  Urated" States 'as  being  suflBcient  in^làw,  however  folly 
substantiated.  This  question  was  discfflSised  in  tljë  United  States," 
during  the  trial  of  tho  "  Savannah"  case  ;  and  tho 'défonce  of  the 
prisoners  that  they  were  eommiasioned  belligerents,  was  ignored  by 
the  dictum  of  Judgef  Nelson,  charging  the  jury,  as  matter  oTlaw, 
that  neitlier  ho  nor  thoy  could  take  that  defence  into  considération 
at  ail,  until  tho  belligeren.cy  or  independence  of  the  Southern  Stjfttes 
was  recognized.  It  behov^s  us,  thérefore,  to  bQ  satisfied  that  the 
offence  of  robbery,  aeéording  to  our  interpretation,of  the  position 
of  the  Çonfederates,  bas  really  been  committed,  betore  I  consent  to 
order  thèse  prisoners  to  be  remitted  jbr  a  trial  of  the  issue^  they 
raise  in  their  defence,  to  a  tribunal  which  would  ignore  that  de- 
fence as  insuflBcient  in  law,  hoWever  satisfactorily  es^iblished  ;  and 
I  consider  tha  remarks  of  Judge  Crompton  already  reTerred  to,  as 

^  being  peculiâfTy  appropriate  to  such  a  condition^of  things. 

With  this  view  of  my  duty,  I  hâve  gone  carefiilly  and&t  perha^ 
unnecessary  lengtk  into  this  matter.  I  hâte  considered  it  'proper 
to  enter  at  greater  length  in^  the  examination  of  some  questions, 
which  perhaps  'in  themselv^  admit  of  no  great  doubt,  but  upon 
which  in  my  humble  judgment  erroneous  views  hâve  been  enter- 
tained,  and  urged  with  great  eamestness  at  the  ,Bar.  I  hâve 
endeavored  to  guide  myself,  by  what  is  recognised  as  law.by  the 
ciyilized  World,  iastead  of  suffermg  myself  to  be  swayed  by  popular 
cries,  or  by  the  passions  and  influences  which  the  proximity  of  this 
lamentable  convulsion  has  stirred  up  among  us.^  And  I  hâve  come 
to  the  conclusion  that  the  prisoners  cannott^be  extradited,  beeause 
I  hftld.  that  what  they  hâve  done  doe's  no£  conafitute  one  of  the 
bSëncçs  mentioned  m  the  Ashburton  trea^,  and  beeause  I  havo 
copse(|uently  no  jurisdiotiou  over  them.  I  am  of  .opinion  thérefore 
that  the  prisoners  'are  entitled  to  their  di^scharge. 

(Tl^  conclusion  of  the  leamed  Judgefs  remarks,  which  occupiçd- 

three-hours  and  a  half  in  the  delive^,  was  greeted  with  loud 

cheerfrm  Court,  whîoh  the  officers  wese  unable^  suppress;  and 

„"wMcWere  taken  up  and  repeated  by  the  crowds  in  the  lobbies  and 

-outsi^e  the  buildifig.)  /u 

=^  Sbn.  M^M^Uj^l  -wonlà  like  to  know  wbat  my  leamed. 


f 


,rî 


u 
r;- 


frîends  for  the  prq^oution  of  things  inteijd  doing  upon  the  other 
.charge»  ?  »        '     "  • 


l*W'^.— -^-J**- 


472 


:i> 


Mr.  Divlin. — I  propose  to  proceed  with  every  charge  against 
the  prisoners. 

Mon.  Mr.  Abbott. — When  will  you  proceed  ? 

The  Court. — The  prisoners  are  remanded  till  Saturday  on  the 
second  charge,  when  the  enquiry  upon  it  will  corne  up. 

«  Wbdnbsday,  April  5th. 

At  half-paât  ten  o'clock  this  morning,  the  five  prisoners,  Bennett 
H.  Young,  Marcus  Spurr,  Squire  Tumer  Teavis,  Charles  Moore 
Swager,  and  William  Huntley  Hut^îhinson,  were  brought  into. 
Court,  and  soon  afterwards  Mr.  Justice  Smith  took  his  seat  on  the 
bench.  Mr.  Johnson,  Q.  C,  and  Mr.  Carter,  Q.  C,  were  présent 
on  behalf  of  the  Crown,  and  Mr.  Devlin  on  behalf  of  the  United 
States.  The  Hon.  Mr.  Abbott,  Q.  C,  Mr.  Laflamme,  Q.  C,  and 
Mr.  Kerr  were  présent  on  behalf  of  the  prisoners. 

Mr.  Devlin  stated  that  since  the  last  sitting  of  the  Court  he  had 
been  officially  informed  by  the  Hop.  Mr.  Cartier  that  after  the 
judgment  of  His  Honor  on  the  charge  for  the  robbery  of  Mr. 
Breck,  it  was  the  intention  of  the  Government  to  proceed  against 
the  prisoners  for  breach  of  the  heutrality  laws,  Having  commù- 
nicated  this  fact  to  the  United  States  Governmfent,  he  (Mr.  Dev- 
lin) was  instructed  to  withdraw  the  charges  against  the  prisoners 
before  the  Court.  He  accordingly  asked  to  be  permitted  to  with- 
draw the  charges. 

Mr.  Abbott  was  in  hopes  the  leamed  Counsel  would  go  one  step 
further,  and  say  that  no  further  application  for  extradition  by  rea- 
son  of  the  occurrences  of  the  19th  October  last,  would  be  made  by 
the  United  States  govemment. 

Mr.  Devlin  said  the  leamed  Counsel  asked  too  much  of  him,  as 
his  functions  ceased  before  this  Court,  and  did  not  extend  beyond 
the  cases  actually  before  his  Honor. 

Mr.  Carter  said  that  as  one  of  the  Counsel  for  the  Crown,  he 
might  be  permitte(f  to  say  something  with  référence  to  the  rumors 
which  had  been  circulated  as  to  the  course  the  Grovemment  in- 
tended  to  pursue.  The  Govemment  had  adopted  such  means  as 
would  De  most  likely  to  bring  thèse  men  to  trial  on  charges  of  vio- 
lât!^ our  neï^ra|ity  laws  ;  but  it  was  not  the  intention  of  the 
GovCrnment  to  wstitute,  nor  would  they  aid  in  instituting,  nor  would 
they  countenancé,  any  further  proceemngs  with  a  view  to  the.  ex- 
tradition of  the^pri^Miers.  So  far  as  the  Govemment  is  conceraed, 
he  deedited  to  oisabuse  the  public  mind  of  a  misapprehension  in 
relation  to  the  course  of  the  Govemment.  It  might  be,  and  had 
beeS)  asked^  wl^  &e~Govemment  did  not  proceed  against^  the  pri- 
soners,  in  the  nrst  instance,  for  violation  of  the  neutrality  laws. 
No  such  proceedings  ceuld  hâve  been  taken.    It  was  only  when 


*i-;--r.:"r. 


s;    vrvfi  -1—  « 


473 

the  prisoners  had  gon^on  their  defence,  and  the  Une  of  defence  had 
been  developed,  that  any  évidence  waa  adduced  to  form  the  baai» 
of  thé' judgment,  that  they  were  to  be  regarded  as  belligerenta,  and 
in  conséquence  of  that  judgment,  and  then  only,  could  the  Govern- 
ment take  any  proceedings  against  them  for  breach  of  neutrality. 

Mr.  Abbott  waa  very  glad  to  hear  so  distinct  a  déclaration  from 
the  leamed  Counsel  for  the  Crown  ;  but  he  had  yet  to  learn  that 
the  Govemnaent  could  do  anything  in  such  matters,    He  would 
like  to  know  if  the  Government  could  control  the  law^    The  Statute 
had  accurately  prescribed  the  process  by  which  enquiries  of  thi» 
nature  were  to  be  conducted,  and  the  Govemmen^ould  neither 
promote  nor  prevent  such  inquiries.    The  United«^tes  Govern- 
ment had  free  access  to  our  tribunala  to  demafli^a  judgment  - 
authorising  extradition  ;  and  it  was  the  magistr^ite  alone,  before 
whom  such  a  proceeding  might  be  taken,  who  could  determme 
whether   the   circumstances    would   justify    extradition   or   not. 
The  Governor-General  might  finally  prevent  the  extradition  of  the 
prisoners  by.  refusing  to  sign  the  warrant,  and  a  pledge  that  he 
would  80  refuse,  would  settle  the  matter.     But  he  (Mr.  Abbott) 
liid  not  understand  that  any  such  pledge  was  given  by  the  Counsel 
for  the  Crown  ;  nor  did  he  ask  for  or  expect  it.     If  the  case  came  up, 
the  Govemor  would  doubtless  act  according  to  his  discijetion,  and 
under  the  advice  of  his  constitutional  counsellors.    But  it  was  the 
United  States  who  should  déclare  what  they  intepded  to  do,  as  upon 
them  depended  the  initiation  of  proceedings.     He  therefore  deSired 
the  leamed  Counsel  for  the  United  States,  in  order  to  allay  the  feehng 
of  the  public,  to  déclare  that  it  was  not  the  intention  to  proceed 
with  any  other  charges.     The  Government  had  declared  their  m- 
tention  to  remove  the  prisoners  to  Upper  Canada  ;  and  the  leamed 
counsel  for  the  United  States  had  withdrawn  ail  the  charges  then 
before  his  Honor  ;  Ihese  charges  origmally  consisted  of  the  case  of 
Breck,  aJready  disposed  of,  and  that  of  aasault  with  intent  to  mur- 
der.    Let  his  leamed  friend  (Mr.  Devlin)  state  that  the  United 
States  abandoned  their  claims  for  extradition,  and  that  would  be 
Bufficient.    He  knew  the  extraordinary  excitement  that  had  been 
created  ;  not  only  among  those  petsons  who  were  against  the  ex- 
'   tradition  of  the- prisoners,  b^t  also  among  those  who  held  a  différ- 
ent view  ;  by  the  belief  that  the  removal  of  tjie  prisoners  to  Upper 
Canada  was  only  intended  to  bring  them  within  the  jurisdiction  of 
Judges  who  were  supposed  to  entertain  a  différent  view  of  the  law 
.  from  his  Honor.    The  précautions  taken  to  put  down  any  violence, 
proved  the  extent  of  that  excitement.    His  leamed  friend  was  a 
dhMontre»!  as  well  m  làaai^^aà^ 


see  the  city  the  scène  of  tumult  and  perhaps  of  bloodshed,  ail  of 
which  might  be  prevented  by  a  word  from  him.    He  (Mr.  A.)  of 


4 


'--**-^^**jJfc,. 


474 


course  made  no  pretension  to  asking  for  this  as  a  right.    He  only 
suggested  i^aa  a  proper  step  to  tranquilli8Q,the  public  mind. 

Mr.  Devlin  said  it  was  humiliating  to  the  last  degree  to  be 
obliged  to  listen  to  such  statements.     Was  it  possible  that  the  causes 
of  law  and  order  hâve  no  friends,  in  this  city  ;  that  we  are  ruled 
by  a  mob  ;  that  justice  had  fled  altogether  from  amongst  us  ;  that 
the  Government  of  Canada  must  succumb  to,  and  in  ail  its  future 
•dealinga  with  the  country  be  influenced  and  guided  by,  the  rowdy 
élément.     Mr.  Abbott  admitted  that  the  Government  vaa  right  in 
bringing  thèse  men  to  trial  for  a  violation  of  Ganadian  law  ;  but 
the  next  moment  he  told  them  that  this  right  could  only  be  exercised 
upon  certain  conditions,  dictated  by  the  prisoners,  otherwise  we 
might  find  ourselves  plunged  into  a  state  of  tumult,  riot,  and  blood- 
sheji.^  But  he  disregarded  thèse  threats,  and  believed  that  the 
<06vemment  would  be  supported  in  the  exercise  of  ita  legitimate 
authority.     We  were  gravely  told,  that  the  citizens  pî  Montréal 
were  excited  to  an  alarming  degree,  because  the  Government  had 
dared  to  hold  the  St.  Alban's  raiders  to  account  for  having  violated 
the  sanctity  of  the  asylum,  afforded  to  them  in  Canada  ;  and  that 
it  required  the  positive  assurance  actually  demanded  from  the 
Counsel  for  the  United  States,  to  restore  tranquillity,  to  ensure 
confidence,  and  to  allay  the  rising  wrath  of  the  exasperated  citi- 
zens.    Well,  for  his  part,  he  would  repeat  again  and  for  the  last 
time,  that  he  would  make  no  other  promise  or  pledge  than  that 
actually  given  ;  and  if  his  refusai  to  do  so,  should  entail  ail  the 
disastrous  conséquences  indicated  in  the  speech  of  his  leamed 
friend,  he  (Mr.  Devlin)  would  say  far  better  and  more  honorable 
would  it  be  to  encounter  thèse  disorders,  than  to  incur  the  odium  of 
entering  into  dishonoring  bargains  with  persons  accused  of  crime, 
for  the  privilège  of  being  allowed  to  put  them  upon  a  trial,  which 
they  knew  well  would  terminate  like  mose  through  which  they  hâve 
heretofore  so  successfully  passed.    In  so  far  as  the  United  States 
were  concemed,  the  libération  of  the  prisoners  was  not  feared  by 
hia  clients.    They  halfr  met  and  conquered  more  troublesome  and 
more  dcsperate  enemies,  and  more  formidable  assailants  than  the 
persons  now  before  this  Court,  and  could  do  so  again.    But  what 
the  United  States  do  care  about  was,  our.good  faith.    They  wish 
to  know  whether  we  mean  to  fulfill  our  treaty  engagements  ;  whe- 
ther  we  intend  to  préserve  our  neutrality,  or  whe^er  while  pre- 
tending  fiiendship,  we  were  not  àcting  the  part  of  war's  disguised 
and  treacherous  enemies.    Tins  was  the  true  cause  of  tiie  interest 
taken  in  the  extradition  of  the  offenders  by  the  United  States. 

Mr.  Carter  sud  that  he  did  not  know  what  further  statement  his 
^teamed  fiiend  (Mr,  Abbott)  wuld^ttalrrafter  fee  Btatement^< 
leamed  Counsel  for  the  United  States.    It  would  oleariy  be  impo6<- 


t&tf^SjfefJJj'gWÉiMiaViiiit.v 


475 

siblé  to  entertain  an  application  in  Upper  Canada  after  the  Govern- 
ment had  instituted  proceedings  based  on  thèse  acts,  as  acts  of 
"hostility,  and  not  aa  common  robberies.  The  Government  was  the 
Government  of  Upper  Canada  as  well  as  of  Lower  Canada,  and 
would  not  be  likely  to  disclaim  in  Ùpper  Canada  what  it  had  autho- 
rized  in  Lowet  Canada.  He  thought  it  unfair  towards  the 
leamed  Counsel  for  the  United  States  to  ask  from  him  a  pledge 
after  the  déclaration  he  had  made. 

Mr.  Ahbott  said  he  had  asked  no  pledge,  he  had  simply  suggestèd 
a  déclaration  of  intention,  which  the  newspapers  of  the  day  stated, 
"  by  authority,"  that  the  leamed  Covmsel  was  empowered  to  tnake. 
He  had  suggestèd  this,  and  instead  of  it,he  had  Igot  a  speech  from 
Mr.  Devlin,  in  which  mj  such  déclaration  was  carefully  avoided. 
Besides,  this  speech  was  fiUed  with  assumptions  as  tonhe  position 
of  the  prisoners  and  their  friends,  which  were  simply  ridiculous. 
No  one  objected  to  the  prisoners  being  tried  for  a  breach  of  neutra- 
lity.  He  (Mr.  A.)  had  always  been  of  opinion  that  they  ought  to 
be  ;  and  although  the  investigation  had  proved  that  there  waa  little 
if  any  ground  for  the  charge,  still  no  one  objeeted.  But  what 
had  aroused  this  whole  community,  was  the  belief  that  the  removal 
of  the  prisoners  was  only  a  (Jishonorable  artifice,  by  means  of  which, 
the  United  States  Government  were  to  be  enabled  to  évade  the 
solemn  judgment,  rendered  in  this  cause  in  favor  of  the  prisoners. 
That  impression  could  be  destroyed  by  a  word  from  his  leamed 
friend,  uttered  openly  hère  in  the  face  of  the  community:  and  he 
had  listened  carefully  to  the  outburst  of  his  friend,  only  to  find 
with  regret  that  he  carefully  avoided  uttering'  that  word.  He 
again  begged  of  him  to  consider  whether  he  might  not  yet  say  it. 

Mr.  Devlin  reiterated  the  instructions  he  had  received  to  with- 
draw  ail  the  charges  before  His  Uonor.  The  proceedings  for  vi<> 
lation  of  the  neutrality  laws  had  been  instituted,  before  he  addressed 
the  Hon.  Attorney-General  on  the  subject.  He  contended  that  his 
leamed  friend  (Mr.  Abbott),  as  one  of  the  legislators  of  the  coun- 
try,  owed  it  to  the  laws  of  his  country,  which  he  had  helped  to 
make,  that  he  should  see  that  they  were  carried  eut,  and  to  make 
every  eflFort  to  that  effect.  Should  we  by  our  sympathy  for  the 
South,  or  a  désire  to  see  the  North  crushed,  say  to  them,  that  no 
matter  what  oflTences  werfl  committed  agwnst  them,  we  would  not 
yield  up  the  oflFenders  ;  and  this  too  for  men  who  would  be  rejoiced 
to  see  Canadians  shedding  each  other's  blood  ?  He  would  inform 
Mr.  Abbott  that  there  were  many  in  this  city  whose  sympathies 
were  not  so  much  with  the  South  as  to  cause  them  to  permit  the 
laws  to  be  trampled  upon. 
"  limy 


Judge  Smith  waà  disposed  to  gire  1he  dedaratiottTrftire^wm^ 
for  the  United  States  its  widest  Bigmficatio|^Hand  said  that  he 


^Sâ<M^^ 


-.£^*. 


.4 


MTG 


b  '■ 


could  not  conceive  that  any  iiitention,  of  the  nature  apprehended 
by  Mr.  Abbott,  could  exi8fc,4fter  the  déclaration  of  the  leamed 
Counsel  for  the  proseCution.  /  No  Court  in  the  country  could  again 
entertain  a  demand  for  extitidition  in  the  St.  Albana  case,  because 
it  had  been  disposed  of- on  tne  broadest  ground  ;  and  Judgea  quoad 
such  matters  were  Judgea  of  the  Empire,  having  concurrent  juris- 
diction,  and  could  not  a  second  time  take  up  what  would  be  virtu- 
ally  th6'  same  question. 

Mr.  Kerr  regarded  the  déclaration  as  a  final  withdrawal  of  ail 
claims  for  extradition.  The  Govemor-Generàl  could  not,  in  the 
face  of  such  a  déclaration,  aign  a  warrant  for  the  extradition  of  the 
prisoners.  It  was  equally  binding  on  the  Government  of  Canada 
and  the  Gpveièment  of  the  United  States^  and  they  could  not 
recède  from  it  'vHthout  grosa  violation  of  honor. 

The  Jttdge  thereupon  ordered  that  the  priaoners  be  discharged. 

Mr.  Abbott  asked  the  Court  to  order  that  the  private  property^ 
money,  and  private  papera,  of  the  prisoners  be  restored  to  them. 

Mr.  Carter  objected  as  to  the  papers  of  record.  » 

Mr.  Abbott  said  those  papera  were  neceasary  to  the  defence  of 
the  prisoners. 

Mr.  Johnson  said  that  the  Court  had  not  the  power  to  dismantle 
the  record  in  such  a  manner. 

Judge  Smith  ordered  that  the  papers  remain  in  the  officiai  cus- 
tody  of  the  Clerk  of  the  Peace  ;  and  granted  the  application  in 
other  respects. 

W.  Ermatingpr,  Esq.,  J.P.,  and  E.  Glarke,  Esq.,  J.P. 
présent, 

Mr.  Carter  said,  addressing  them,  that  with  référencé  to  the 
information  which  had  been  laid  before  them,  and  on  which  their 
Honora  had  isaued  warrants  for  the  arrest  of  the  five  prisoners  on 
charges  of  breach  of  the  neutrality  laws,  he  now  asked  to  be  per- 
mitted  to  withdraw  the  proceedings,  with  the  view  to  the  removal 
of  the  enquiry  to  Toronto. 

The  prisoners  were  discharged  accordingly.  They  were  imme- 
diately  taken  into  custody  by  a  peace-officer  from  Toronto,  imder  a 
warrant  from  Recorder  Duggan  ;  and  were  removed  to  Toronto  on 
the  same  day,  by  spécial  train. 


being 


:\.^-'.>-i.i.\-..i-\i.-és'i-±-,^'ûJi^kii'k^^^^^^ 


APPENDIX. 


At  the  Court  at  Osbornte  House,  Isle  of  Wight,  the  4th  day.of 
February,  1865. 

The  Qubbn's  Mpst  Excellent  Majesty. 
Lord  Président— Earl  of  Clarendon,  Duke  of  Somerset,  Mr.  Massey. 
Whereas,  by  an  Act  of  Parliàment  passed  in  the  Session  of  Par- 
Uament  held  b  tho  6th  and  7th  years.  of  Her  >Iajea^  s  Re^, 
intituled:   «An  Act  for  giving  effect  to  a  Treaty  between  Her 
«  Maiesty  and  the  United  States  of  America  for  the  appréhension 
«  of  certam  offenders,"  it  wâs  by  the  6th  section  enacted  that  if  bv 
any  law  or  ordinance  made  by  the  Local  Législature  of  any  Bntish 
Colony  or  Possession  abroad,  provision  should  be  made  for  cariy- 
ina  into  complète  effect  within  such  Colony  or  Possession,  the 
obiects  of  the  said  recited  Act  by  the  substitution  of  some  ottier 
enaotment  m  heu  thereof,  then  it  should  be  Compétent  to  Her  Ma- 
iesty, with  the  advice  of  Her  Privy  Council,  (rf  to  Her  Majesty  in 
ComicU  it  should  seem  meet,  but  not  otherwise,)  to  suspend  the 
opération  vithin  any  such  Colony  or  Possession  of  the  said  recited 
A^t,  so  long  as  such  substituted  enactment  should  cohtmue  m  force 
there  and  no  longer.  "      .,       , 

And  whereaa,  by  an  Act  passed  by  the  Lerislative  Council  and 
Assembly  of  Canada,  in  the  12th  year  of  the  Beignof  Her  présent 

Majesty,  mtituled:  «An  Act  for  ^^S  ^«t*^^5n^!S^f!^^ 
Province  to  a  Treaty  between  Her  Majesty  and  the  Umted  States 
of  America,  for  the  appréhension  and  surrenderofcert^n  offenders, 
Cwhich  Act  was  aflerwards  incorporated  m  aad  contmued  by  the 
89th  chapter  of  the  Consolidated  Statutes  of  Canada,  under  and  by 
virtue  of  another  Act  of  the  said  Législative  Council  «id  AssembW, 
passed  m  the  22nd  year  of  Her  Miyesty's  gpign,  mtitded  :  «  An 
Xctrespecting  the  Consolidated  Sttttate8<Jf  Canada),  provision 
was  màe  for  carrying  into  complète  effect,  withm  the  saidProvmce, 
the  objecta  of  the  said  first  recited  Act  of  Parhament. 

Anà  whereas,  by  an  Order  in  Comicil,  made  on  tt%8th  daj  of 
Januaiy,  1860,  Her  Migôsty,  by  and  with  the  advice  of  Her  Fnvy 

Counc/.was  pleased  to  ^ P^^f,  ^t.  S!î!L?^nt^nt  ^ 

"  MciteîActm  Cafiada,  so  long  as  the  «utetituted  ^?*f«^^,^ 

tained  in  the  said  Act  of  the  Législative  Council  and  Assembly  of 


1  ^^^^^fifllM 


JlniéâltM*n 


i*    ■ 

li  ■' 


478 

Canada,  of  the  12th  year  of  Her  M^'esty's  Reign,  should  continue 
in  force  and  no  longer. 

And  whereas,  by  another  Act  passed  by  the  said  Législative 
Council  and  Assembly  in  the  24th  year  of  the  Reign  of  Her  Ma- 
jesty,  intituled  :  "  An  Act  to  amend  chapter  89  of  the  Consolidated 
Statutes  of  Canada,  respecting  the  extradition  of  fugitive  félons 
from  the  United  States  of  America,"  further  provision  hath  been 
inaàe  for  carrybg  into  effect  within  the  said  Province  the  objecta 
of  the  said  recited  Act  of  Parliament,  by  the  repeal  of  certain  sec- 
tions of  the  said  chajpter  89  of  the  said  Consolidated  Statutes,  and 
by  the  substitution  oi  other  provisions  in  lieu  thereof. 

And  whereas,  by  the  said  last  mentioned  Act,  and  by  the  said 

89th  chapter  of  the  Consolidated  Statutes  of  Canada,  aa  thereby 

altered  and  amended,  suflScîent  provision  is  made  for  carrying  into 

complète  effect  within  the  sud  Province  the  objeots  of  tàxe  said  first 

recited  Act  oi  Parliament.         » 

-     And  whereas  doubts  may  exist  whether  the  effect  of  the  said 

Acts  of  the  said  Législative  Council  and  Assembly  subséquent  to 

the  12th  year  of  Her  Majesi^'s  Reign  may  not  hâve  been  to 

render  the  sud  Order  in  Council  of  the  8th  day  of  January,  1850, 

no  longer  operative  in  Canada,  and  it  is  expédient  that  such  doubts 

should  be  henceforth  removed  and  that  iixe  opération  within  the 

said  Province  of  the  said  first  recited  Act  of  Parliament  shall  be 

and  continue  suspended  so  long  as  the  above  recited  Provincial 

Acta  shaU  be  and  continue  in  force  there  and  no  longei'. 

It  is  therefore  ordered  and  declared  by  the  Qneen^  Most  Excel- 
lent Majesty,  by  and  with  the  advice  of  Her  Privy  Council,  as  fol- 
lows; 

I.  The  opération  within  the  said  Province  of  Canada  of  the  said 
first  recited  Act  of  Parliament  (if  and  so  far  as  the  same  is  now 
in  force  therein),  shaJl  be  and  contmue  suspended  so  long  as  the 
said  Provincial  Acta  shall  be  and  continue  in  force  there  and  no 
longer.  '  ' 

n.  Our  Goyemor  General  of  our  sud  Province  of  Canada  shall 
cause  this  order  io  be  publidy  notified  and  promulgated  in  the  said 
Province  as  sooh  as  conveniently  may  be  after  his  receipt  thereof» 
and  the  same  shall  take  eflfect  and  corne  inito  opération  upon  and 
fit)m  the  daj  of  such  public  iiotifi0ation  and  promulgation  thereof 
in  our  said  Province,  so  as  not  to  inviJidate  any  Act  lawfoUy  done 
iû  the  said  ProvilKie  before  the  date  oS  saoh  public  notification  and 
promulgation. 

Ahd  the  ^j^t  Honorable  Edward  Cardwell,  one  of  Her  Miyes- 
ty's  Principal  8ecif6ifme8of  State,  jato  «Ve  the  ne<jegeary  dâfêo- 

(Kgnèd,)  ARTHtlR  HELPS. 


.•»i,^rvA,%'^'fe*tf'Vi''t. 


479 


OPINION  OF  SIR  HUGH  CAIRNS  AND  MR.  FRANCIS 

REILLY. 

CASE  FROM  CANABA  FOR  THE  CONSIDERATION  OP  COUNSEL. 

Upon  a  demand  made  by  the  Government  of  the  United  States 
for  the  extradition  of  Benfaett  H.  Young  and  four  others  on  a 
I  charge  of  having  robbed  one  Samuel  Breck  at  St.  Albans,  in  the 

State  of  Vermont,  on  the  19th  day  of  October  last,  certain  évi- 
dence has  been  taken  which  is  to  be  found  in  the  printed  report  of 
theproceedings  from  page  129  to  page  220  inclusive. 

The  opinion  of  CounseT  is  requested  upon  the  followîng  questions 
{  arising  out  of  the  évidence  : 

\y  Question. — Does  the  évidence  sufficiently  establish  that  on  the 

19th  of  October  last,  Bennett  H.  Young  was  a  commissioned  officer 
in  the  army  of  the  Confederaté  States,  and  that  the  other  prisoners 
were  soldiers  in  that  array,  and  were  then  under  bis  command  ? 

Answer. — We  are  of  opinion  that  the  évidence  sufficiently  esta- 
blishes  the  points  referred  to  in  this  question. 

Quettion. — In  what  capacity  does  it  appear  from  the  évidence 
that  he  and  his  party  acted  on  that  day  at  St.  Albans  ? 

An8wer.—-yfe  are  of  opinion  that  it  appears  from  the  évidence 
they  acted  in  a  belligerent  character. 

Question. — Under  the  circumstances  proved  and  under  the  laws- 
of  war,  had  the  prisoners  the  right  of  takiijg  Breck's  money,  as  the 
évidence  shows  they  did  (pp.  131,  2,  3,  4,  9, 141,  2)  ? 

^n«wer.— Though  in  the  conduct  of  war  on  land  the  capture  by 
thé  officers  and  soldiers  of  one  belligerent,  of  the  private  property 
of  subjects  of  the  other  belligerent,  is  not  often,  in  ordinary  crises, 
avowedly  practised  at  the  présent  day,  it  is  yet  legitimate. 

We  are  therefore  of  opinion  that  this  question  must  be  answered 
in  the  affirmative. 

Question. — Is  the  character  of  the  prisoners'  acts  at  St.  Albans 
in  any  respect  affected  by  the  facts  proved  in  relation  to  Lieutenant 
Young's  proceedings  in  Canada,  or  to  those  of  any  of  his  party  ;  or 
by  their  having  passed  through  Canada  previous  to  the  attack  ? 

Answer.—We  are  of  opinion  that  any  such  facts  as  those  refer- 
red to  in  this  question  cannot  aflFect  the  character  of  the  prisoners' 
acts  at  St.  Albans. 

QuesUcM. — Does  the  takîng  of  Breck's  money  under  the  circum- 
stance  proved,  constiiute  the  crime  of  robbery  within  the  meanintr 
ofthe  AshburtonTreaty? 

_^_    ^^nwer.— -We  ttfe  dF^pinion  that  &«  fects  proved  do  notcon» 

Btitute  the  crime  of  robbery  within  the  meaning  of  the  Extraditioa 
Treaty. 


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480  ,        ' 

The  acts  of  the  priaoners  dérive  their  character  in  contemplation  of 
law,  from  the  animus,  the  intent  of  the  actore.  Their  intent  having 
beett,  88  ^he  évidence  olearlj  shows,  not  colorably,  but  really,  to 
exercise  rights  vested  in  them  as  servants  of  a  belligerent  Govern- 
ment, their  acts  are  not  to  be  tried  by  the  standard  of  munici- 
pal law. 

This  principle  is  applied  in  the  décision  of  the  Suprême  Court  of 
the  United  States  in  T^e  United  Statet  v.  Palmer,  8  Wheaton 
Rep.  610,  where,  with  référence  lo  aie  case  "  when  a  civil  war 
rages  in  »  foreign  nation,  one  part  of  which  séparâtes  itsel^  firom 
the  old  establitehed  Government,  and  erécts  itself  into  a  distinct 
Government,"  tiicLCoart  laid  down  tib»  rule,  that  "  if  the  Obvera- 
mentof  the  Union  remains  neutral,  but  recognizes  the  existence  of 
ft  civil  war,  the  Courts  of  the  Union  oannot  coiisider  as  crhninal 
those  acts  of  hostility  whiohVar  authorisês,  and  which  the  new  Gov- 
ernment may  direct  agûnst  its  enemy." 

Ai^d  to  the  same  e&ct  is  ihe  dictum  <^  one  of  the  Judges  of  the 
Court  ofQueen's  Bènch  in  Ae  récent  case  of  the  Gerity  fwhere 
the  prisonera  had  seizéd  a  ship  at  sea,  saying  they  werè  acting  for 
the  Gonfederate  GovemmentJ  <^  though  titie  Confederate  States  are 
not  recognised  as  independent,  they  are  reco^ÎMd  as  a  bellieerent 
power,  and  there  can  be  no  doubt  tha^parties  iK3tizifgi&  their  behalf 
would  not  be  criminally  re8pon8ible"(12  Week.  Rep.  868). 

,   <Signed)  H.  W.  CAlftNS, 

FRANS.  BEnXY. 

Lincoln's  Inn, 

22nd  March,  1866. 


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